Nursing Mothers Rights at Work in Wisconsin: Pumping & Lactation Laws

Federal law under Section 7(r) of the Fair Labor Standards Act (29 U.S.C. § 207(r)) requires employers with 50 or more employees to provide reasonable break time and a private place (not a bathroom) for nursing mothers to express milk during the workday. The break time must be paid unless the employee is completely relieved of work duties. This requirement applies for one year after the child's birth. The U.S. Department of Labor (DOL) enforces this provision, and employers cannot retaliate against employees for requesting or using lactation accommodations. State employees, employees covered by collective bargaining agreements with specific lactation provisions, and employees in certain transportation industries may have different rules. The EEOC also has jurisdiction over lactation discrimination claims that intersect with pregnancy discrimination under Title VII of the Civil Rights Act of 1964.

Federal law also prohibits employers from interfering with an employee's right to express milk and requires that the space provided be sanitary. Employers are not required to provide the break time if it would be an undue hardship, though this standard is rarely met in practice. Remedies under federal law include wage recovery for unpaid break time, compensatory damages, and in some cases, liquidated damages equal to the amount owed.

Wisconsin Statute § 103.88 goes beyond federal law in several important respects. First, Wisconsin law applies to all employers regardless of size, whereas federal law only covers employers with 50 or more employees. This means nursing mothers in small businesses and nonprofits have greater protection under state law.

Second, Wisconsin law requires employers to provide a "reasonable amount of break time" and specifically mandates a private space for the nursing mother to express milk. The statute explicitly states that a bathroom is not an acceptable location. Employers must allow the nursing mother to use this space without interference or surveillance.

Third, Wisconsin law does not include a one-year sunset; the right continues as long as the mother is nursing. Federal law limits the requirement to one year after the child's birth, but Wisconsin provides ongoing protection. This is a significant state-law advantage for Wisconsin nursing mothers.

Fourth, Wisconsin law requires that break time be compensated as hours worked unless the employee is completely relieved of all work duties and responsibilities. If the employee must remain on-call or available to work, the break time must be paid. Employers cannot dock pay or require the employee to make up the time.

Wisconsin also prohibits retaliation under § 103.88. An employer cannot discharge, threaten, discriminate against, or otherwise penalize an employee for requesting or using nursing break time. The statute includes an explicit anti-retaliation provision that allows employees to file complaints with the Wisconsin Department of Safety and Professional Services (DSPS). Violations can result in civil liability and, in some cases, reinstatement or back pay awards.

Wisconsin law contains few exceptions, making it one of the strongest nursing mothers' protections in the nation. However, the statute does allow employers to deny or limit break time only if they can demonstrate that providing the break time would "substantially and materially" affect the conduct of the employer's business. This is a high bar and rarely succeeds in practice; employers must show specific operational or safety concerns, not merely inconvenience.

One exception involves employees in safety-sensitive positions. An employer may restrict the timing or frequency of nursing breaks if the employee is required to operate heavy machinery, work at heights, or perform other safety-critical functions where inattention could cause injury. However, the employer must still provide a reasonable accommodation and cannot eliminate the right entirely.

Break time is not required if the employee is not actually nursing (expressing milk for a child). The law applies only to mothers who are actively lactating and need to express milk during work hours. Once the mother stops nursing, the employer's obligation ends.

The federal FLSA exception for employers with fewer than 50 employees does not apply in Wisconsin, as state law covers all employers. However, employers may argue undue hardship if they can show that providing a private space would be impossible (e.g., a very small office with no available room). In such cases, the employer must explore reasonable alternatives, such as allowing the employee to pump in a manager's office or vehicle.

Union-represented employees may have different rules if their collective bargaining agreement contains specific lactation provisions that provide greater or different protections. In such cases, the CBA governs.

Step 1: Document Your Situation

Keep detailed records of all requests for break time and the employer's responses. Write down the date, time, and substance of each conversation, including the names of any supervisors or managers involved. Save any written communications (emails, texts, memos) in which you requested lactation accommodations. Document the private space (or lack thereof) that your employer provided, including photographs if possible. Record any comments the employer made about your nursing, such as "you're using too much break time" or "this is inconvenient." Note any changes to your work schedule, duties, or pay that occurred after you requested break time. Keep copies of any written policies the employer provided about lactation accommodations. This documentation will be critical if you need to file a complaint later.

Step 2: Request Accommodation Internally

If you have not already done so, submit a formal written request for lactation break time to your direct supervisor or HR department. State clearly that you are nursing and need reasonable break time to express milk, and request a private, non-bathroom space to do so. Keep a copy of this request. If your employer has an employee handbook, review it for any existing lactation policy; if one exists, cite it in your request. Give your employer a reasonable opportunity to respond (at least 5–7 business days). If they deny your request or fail to respond, send a follow-up written request citing Wisconsin Statute § 103.88. This internal process is not legally required but creates a clear record and may encourage your employer to comply before a formal complaint is filed.

Step 3: File a Complaint with Wisconsin DSPS

If your employer does not provide reasonable break time and a private space, or if you experience retaliation for requesting lactation accommodations, file a formal complaint with the Wisconsin Department of Safety and Professional Services (DSPS). The complaint must be filed with the Division of Industry Services, which enforces § 103.88. You can file a complaint online through the DSPS website (dsps.wi.gov) or by mail to: Wisconsin Department of Safety and Professional Services, Division of Industry Services, 201 East Washington Avenue, Madison, WI 53703. The complaint should include: (1) your name, address, and phone number; (2) your employer's name and address; (3) a detailed description of the violation (e.g., "employer denied break time," "employer required me to pump in a bathroom," "employer retaliated by reducing my hours"); (4) the dates the violations occurred; (5) the names of any witnesses; and (6) copies of your documentation. There is no filing fee. DSPS will conduct an investigation at no cost to you.

Step 4: Investigation and Resolution

After you file a complaint, DSPS will contact your employer and request a response. DSPS investigators may conduct interviews with you, your employer, supervisors, and coworkers. The investigation typically takes 30–90 days, depending on complexity. You will be notified of the results. If DSPS finds a violation, the agency may order the employer to cease the violation, provide back pay, and post notices of employee rights. If the employer does not comply with a DSPS order, you may pursue civil litigation. DSPS will not represent you in court, but their investigation findings can be used as evidence.

Step 5: Consider Legal Representation

If DSPS finds a violation but the employer does not comply, or if retaliation is severe (termination, significant wage loss), consult an employment law attorney licensed in Wisconsin. An attorney can file a civil suit for damages under § 103.88, which may include back pay, compensatory damages (for emotional distress, harm to reputation), and in some cases, punitive damages if the violation was intentional or reckless. You may also have a federal claim under the Fair Labor Standards Act if your employer has 50 or more employees; a federal claim may allow recovery of liquidated damages. Many employment attorneys work on contingency (no upfront fee), so ask about this option during an initial consultation.