Social Media Employment Law

Beginning The New Year With Breastfeeding

Happy New Year to all of you.    I hope you will find our 2011 social media and employment law blog posts to be informative, somewhat entertaining, and useful to you and your company.   Feel free to review our prior 2010 posts as well.

Social media allows us to see it all.  We have viewed tragedies captured on video, and have taken great interest in a rags-to-riches story of a homeless person blessed with a great radio voice.  And, as we know, social media has tremendous impacts on employment law and the relationship between employer and employee.

Last week, posted a story about the latest furor caused when Facebook removed, then re-posted, and then removed again, photos of nursing mothers that were posted on “The Leaky B@@b”, a support group apparently formed to provide information and advice to nursing mothers.  Facebook initially took the position that the photos violated its Terms of Service on what they considered to be obscenity grounds.   Other groups were then formed to “Save the Leaky B@@B”, and even joined the fray, as the debate continued over whether pictures of nursing mothers are appropriate material to be posted on social networking sites.

Breastfeeding in the workplace has also been the recent subject of federal and state legislation.   The federal Fair Labor Standards Act was amended to require employers to provide reasonable break time for one year after a child’s birth, and private space (other than a bathroom), for employees to express breast milk.   Notable exceptions:  (1) You are not obligated to pay for the break time, (2) If you employ fewer than 50 employees, your company is exempt from the requirements if they would impose an “undue hardship”; and (3) “Exempt” employees (i.e., bona fide executive, administrative, or professional employees) are not entitled to the benefits provided by this new law.  

Federal law does not preempt state law, so you must also consider any state or local requirements enacted in your jurisdiction.  For example, New York law was recently amended to require covered employers to provide reasonable, unpaid break time for mothers to express milk in a private location, to prohibit discrimination against breastfeeding mothers, and to require the posting of a “Breastfeeding Mothers Bill of Rights” in certain health care facilities.

Employer Take Away:   What should you as an employer take away from this development?     Whatever side you fall on in the debate over posting pictures of nursing mothers, the latest controversy at the very least demonstrates that the issue of women’s rights continues to be at the forefront of social discussion.  We are, therefore, reminded that companies must understand the legislative and judicial rights afforded women in the workplace, and, particularly in this case, the rights of women who choose to nurse their children at work.

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