In this third blog post on the PUMP Act (my earlier posts can be read here), I share the key takeaways from the Department of Labor’s (DOL) recently released Field Assistance Bulletin that provides additional clarification on how this new law is to be applied.
As a reminder, the PUMP Act (the Act) expands lactation protections for nursing mothers under the Fair Labor Standards Act, in that employers are required to provide nursing mothers with a reasonable amount of break time and private space to express milk for up to one year after the child’s birth.
The DOL will be interpreting an employer’s obligations under the Act as follows:
Breaks. Employers may not deny a needed pump break, and must consider that the frequency, length and timing of the breaks needed vary by each employee’s situation, and other factors like the location of the private space and pump setup requirements. While the employer and employee may agree to a schedule of breaks, the employer cannot insist that the employee adhere to a schedule that does not meet their needs and the employer needs to be flexible with adjusting the schedule as the employee’s needs change.
Wage and Hour Considerations.
- Are The Breaks Paid? It depends. Pump breaks do not need to be paid unless required under federal, state or local law. The FLSA requires that breaks of 20 minutes or less be paid, and if the employer provides such breaks to its employees generally, nursing employees may use such paid breaks to pump. If extended time or additional breaks are required beyond any generally-provided break, these need not be paid so long as the employee is entirely relieved from work during the break.
- Hours Worked. If the employee is non-exempt, any paid break of 20 minutes or less is considered hours worked for purposes of calculating overtime, regardless of whether the employee is using it to pump or not. Unpaid breaks do not count as hours worked. However, if an employee performs any work during the unpaid pump break, the time spent working is hours worked and must be paid.
- Exempt Employees. All exempt employees must be paid their entire weekly salary without regard to any pump (or other) breaks.
Space Requirements. The FLSA requires an employer provide a pumping space that is:
- Private, which means: shielded from view; free from intrusion from coworkers and the public; available as needed; and not a bathroom.
The DOL states that a temporarily-created space or one that is made available when needed is sufficient to meet this requirement. Providing a door lock or displaying a sign when in use will ensure the employee’s privacy. Finally, including when teleworking, employees must not be seen by computer camera, security camera, or web conferencing platform while pumping.
- Functional, which requires the employee has a place to sit and a flat surface other than the floor, on which to place the pump. Employees must be able to safely store their milk at work, whether by insulated container, personal cooler, or refrigerator. Although not a mandate, the DOL remarks the space should ideally include access to electricity and a nearby sink.
- Options for pumping spaces can include: a vacant office; storage room with a door and covered windows; or creating a space with partitions. If there is more than one nursing employee, employers should consider whether to increase space options.
Small Employer Exemption. While certain industry employees are not covered by the Act (air carriers, rail carriers, and motor coach services), the Act also exempts employers with less than fifty (50) employees if compliance would cause an undue hardship. The undue hardship analysis is made on an individual employee basis, under the particular circumstances. The employer must establish “significant” difficulty and/or expense for compliance based on size, financial resources, the nature and structure of its business. Because the pump break/space requirement is only for a year after the birth of a child, the DOL warns that the exemption will only apply in “limited circumstances.”
Remedies. An aggrieved employee could receive remedies that include reinstatement, promotion, and the payment of lost wages, an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and even punitive damages if appropriate.
No Retaliation. Employees are protected from retaliation for engaging in protected activity, including requesting or taking pump breaks, or making internal or external complaints of violations of their PUMP Act rights. The DOL offers the following retaliation example: requiring an employee to make up the time they took for pump breaks and holding that time against them for determining whether they met a sales (or other production) quota.
Posting Requirements. Employers must post the mandatory FLSA notice, which includes provisions on minimum wage, overtime, child labor, and the PUMP Act. The DOL has just issued a revised version of this poster in April 2023.