Friday, October 4, 2013

Lactation breaks and posting requirements went into effect July 1, 2013

     Act 249, Regular Session 2013, was signed into law and became effective on July 1, 2013.  The Act requires employers to provide a private place (other than a bathroom) and the time for mothers in the first year of their child's birth, to express breast milk.   The law also requires employers to post a notice about nursing mother's rights.  The DLIR has provided a suggested poster that can be found on the DLIR website. 

Who's covered?
      This law protects all employees who need to express milk while at work within the first year of their child's birth.  This is a much broader application than a similar law under the Federal Labor Standards Act ("FLSA").  The FLSA provision applies only to those employees who are not exempt from the overtime law under FLSA.  The FLSA also provides that any State law offering greater protection has priority.  This means Act 249 is the standard in Hawaii for all employers.

All employers?  YES!
     The law does provide an opportunity for employers with less than 20 employees to prove that providing the space and time would impose an undue hardship.  Notice it is the employer who has to show the undue hardship if they choose not to provide the space and time required under the law. 

What kind of space and how much time?
      Act 249 specifies employers need to provide  "reasonable break time" which is not defined.  As well, the place provided must be "shielded from view and free from intrusion."  Employers who are struggling with how to provide this may reach out to proponents of the measure including  Breastfeeding Hawaii who have various suggestions and alternatives to assist employers with compliance.
Private right of action and penalties
   The DLIR does not enforce this law, it is enforced by court action, similar to Hawaii's whistleblower law.  Employers who fail to comply with opportunity to express milk law  may be sued in an appropriate court and be subject to a civil fine of $500 a day for violations.  In addition, employers may be liable for damages to the employee or employees who bring the private right of action in court.

What to do if employer and employee can not agree
   The law provides a legal remedy that allows a lawsuit in the appropriate court.  The Hawaii State Bar Association has a referral and information line (808-537-9140) that will provide free referrals to several attorneys that are familiar with this issue that will help you find a resolution.

Mediation may be the answer
     Employees or employers may reach out for assistance in resolving the matter through mediation.  Community mediation centers throughout the State provide professional workplace mediation.  To find out more about how this can help, you can contact a local mediation center near you.  Honolulu, Oahu - Mediation Center of the Pacific (808) 521-6767; Wailuku, Maui - Maui Mediation  (808) 244-5744;  Hilo Hawaii - Ku'ikahi Mediation Center  (808) 935-7844; Kamuela, Hawaii - West Hawaii Mediation Center - (808) 885-5525; Kauai - KEO Mediaton (808) 245-4077 Ext: 229 or 237.

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