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Who is covered by the law?

The "Break Time for Nursing Mothers" law applies to nonexempt employees covered by the Fair Labor Standards Act (FLSA).

If you are an hourly employee covered by the FLSA, you have the right to break time and a private space to express milk for your baby while you are at work. Even if you are not covered by the federal law, you may be covered by a state law.

For help determining whether you are covered, call the Wage and Hour Division at 1-866-487-9243, try the Fair Labor Standards Act Advisor, or use the following chart:

"Break Time for Nursing Mothers" law: Are you covered?

Use the chart below to determine whether you are covered by the "Break Time for Nursing Mothers" law. An explanation of this chart is included below:

 

Explanation of the above chart:

The "Break Time for Nursing Mothers" law is included in section 7 of the FLSA, which deals with overtime pay requirements. This means that the law only covers hourly workers, also known as nonexempt employees, covered by the FLSA.

If your employer is required to pay you overtime (one and a half times your usual pay rate) when you work more than 40 hours per week, then you are considered a non-exempt employee. Even if you only work part-time or have never actually received overtime pay, you are still considered a nonexempt employee.

The "Break Time for Nursing Mothers" law only covers employees who are nonexempt AND covered by the FLSA. In order to be covered by the FLSA, your job must qualify under either "enterprise coverage" or "individual coverage," as explained below.

Enterprise Coverage (this means the law applies to the business):
Employees who work for certain businesses or organizations (or "enterprises") are covered by the FLSA. These enterprises, which must have at least two employees, are:

  1. businesses that make at least $500,000 from sales or other operations. You can look for this information online or by contacting your company's Human Resources department; or
  2. hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies

Individual Coverage (this means the law applies to the individual person):
Even when there is no enterprise coverage, employees are protected by the FLSA if their work regularly involves them in sales between states ("interstate commerce"). The FLSA covers individual workers who are "engaged in commerce or in the production of goods for commerce."

You are involved in interstate commerce if you:

  • help produce goods that will be sent out of state
  • regularly make out of state phone calls
  • handle records of interstate transactions
  • travel to other states for your work
  • do janitorial work in buildings where goods are made for shipment outside the state

If you are covered by either enterprise or individual coverage but are not paid hourly, you may not be covered by the "Break Time for Nursing Mothers" law. For example, although schools and preschools are included under enterprise coverage, salaried teachers are not covered by the "Break Time for Nursing Mothers" law because they are not hourly employees.

Some examples of employees who are covered include

  • Retail workers
  • Factory workers
  • Restaurant workers
  • Call Center workers
  • Agricultural workers
  • Construction workers

Some examples of employees who are not covered include:

  • Executive Professionals
  • Administrative Professionals
  • Teachers

If you are not covered by the federal "Break Time for Nursing Mothers" law, visit the U.S. Department of Labor Women's Bureau online map of employment protections for women who are pregnant or nursing for a state-by-state listing or contact your state breastfeeding coalition to find out if you are covered by a state law. For information on other state breastfeeding laws, see the directory from the National Conference of State Legislatures.

**Continue to Next Section: What if your state already has a law?**

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