Give Moms a Break or Suffer Costs

I’ve asked a dozen or so business operators in recent months if they’ve created lactation rooms yet. Most of them have given me a blank stare, with several saying they were unaware of the new state law, which went into effect Jan. 1. Alas, inaction could be costly. The reason: If an employer does not provide private rooms for nursing mothers, the new statute allows employees to file suit under the Private Attorney General Act. PAGA suits are frightening to business operators because they can elevate what would be a routine fine from the state into a legal fight in state court that could cost hundreds of thousands of dollars, perhaps a million or more, to settle. Perhaps because of the raft of new employment laws to keep up with – a higher minimum wage and the loss of many independent contractors, to name two – the lactation room requirement is one that seems to have been overlooked by many. But it is an important one. The new law basically requires employers to create a private break room – it cannot be a bathroom – for new mothers to express breast milk. It must be near employees’ work area and be shielded from view and free of intrusions while the mother is in the room. It must have electrical outlets or at least an extension cord, a place to sit and a surface for a breast pump. Also, nursing mothers need to have access to running water and a refrigerator or at least a cooler, either in the room or nearby. Employers can use an existing room, such as a multipurpose room, so long as it meets the requirements, including a lockable door and no interior windows. But the mother has priority. So, a scheduled meeting in a conference room, for example, might have to wait. There are other requirements under the law, including an expanded definition of break times for nursing mothers and a need for the employer to create a policy on lactation accommodation that must be given to all employees. The new law is a requirement for employers (including public sector employers and nonprofits) with 50 or more employees. Importantly, those with fewer than 50 aren’t off the hook, but they are allowed to ask for a hardship exemption. The employer must show that providing the accommodation would impose some undue burden, such as significant difficulty or expense. It remains to be seen whether the state’s labor office will be liberal or stingy with granting exemptions. The law also allows employers in multi-tenant worksites, such as an office building, to comply with the law if the building’s owner provides suitable lactation rooms that can be shared among the tenants. It’s unclear if many building owners have been creating compliant lactation rooms. Then again, there’s been so little time to build them. Oh, and it doesn’t matter if you have no new mothers on staff or even if you have only nuns as employees, the law requires you to make the accommodation. All of the business operators I’ve talked with have no philosophical objection with the intent of the new law. As one man put it, if women had been running the world, lactation rooms would have been commonplace decades ago. But they do object to the manner in which it has come down – quickly, with little time to comply. The bill was signed by the governor on Oct. 10 – less than three months ago. And those who are aware of the new law intensely dislike the fact that employees can sue under PAGA, a favorite tool of class-action lawyers, who are a favorite constituency of state lawmakers. To at least some employers, it feels like they’re being set up for a shakedown. Under PAGA, a fine of $100 each day the employer is out of compliance typically gets multiplied by the number of employees. When you do that math and then tote up the usual legal costs of a court fight along with any punitive damages, many mid-sized businesses walk away from a PAGA case hundreds of thousands of dollars lighter. Maybe a million or more. If you don’t have a lactation room yet, you may be able to comply by designating a temporary location – even if it’s the boss’s office. So long as it is not a bathroom and meets the other requirements, it may keep you out of trouble. Charles Crumpley is editor and publisher of the Business Journal. He can be reached at [email protected].