DOL Gives Employer Guidance Before PUMP Act Enforcement Begins April 28

The U.S. Department of Labor (DOL) will begin enforcement of the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) on April 28. As discussed in Phelps’ Jan. 5 insight, the PUMP Act adds protections to a 2010 law that requires employers to provide non-exempt workers who are nursing reasonable time to express breast milk and a private location (other than a restroom) to do so. This right is available for up to one year after the child’s birth.

The PUMP Act expands those rights that were already in place under the Fair Labor Standards Act (FLSA) to also include employees who are in exempt or typically salaried positions. The law further provides that time spent expressing breast milk must count as compensable work time if the employee is performing their regular duties at the same time.

In advance of the effective date of the new law, the DOL issued guidance to employers in the form of frequently asked questions as well as an updated fact sheet detailing employers’ obligations under the Act.

As noted in the new guidance, the PUMP Act applies to all employers covered by the FLSA, although smaller business with fewer than 50 employees may be exempt from the break time requirement if the employer can demonstrate that compliance with the provision would impose an undue hardship. Undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature or structure of the employer’s business.

The guidelines note that break times for expressing milk do not need to be paid time, however, if employers provide compensated breaks for all employees. An employee who expresses milk during a break must be compensated in the same way that other employees are compensated for break time. Additionally, the FLSA’s general requirement that the employee must be completely relieved from duty during these or else the time must be compensated as work time applies.

The updated fact sheet provides the following examples:

• Madison works on a farm. Madison’s employer provides all employees with two paid 15-minute rest breaks each day. Madison chooses to use both of the paid 15-minute breaks to pump breast milk for her 6-month-old infant. If Madison needs additional breaks to pump, the additional break time does not have to be compensated as long as Madison does not perform any work during the breaks.
• Peyton is a third-grade teacher. Under the FLSA, Peyton is entitled to time to pump breast milk in a private space. Peyton chooses to grade papers and complete student records while pumping breast milk. Peyton must be compensated for the time spent pumping and doing this work at the same time. 

The PUMP Act also contains anti-retaliation provisions to protect employees exercising their rights under the Act. The fact sheet gives the following example:

• Leslie is a delivery truck driver for a department store and takes breaks to pump breast milk a couple of times each day. The supervisor complains that the breaks are interfering with the delivery schedule and moves Leslie to a lower-paying job as a result. In this example, Leslie has experienced unlawful retaliation under the FLSA.

The new guidance also makes clear that employees who work remotely are also entitled to breaks to express milk. The fact sheet notes that “[w]orkers who telework must also be free from observation by any employer-provided or required video system, including computer camera, security camera, or web conferencing platform.”  

As of April 28, an employer who violates an employee’s right to reasonable break time and space to pump breast milk will be liable for legal or equitable remedies under the FLSA. These would include employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate. These remedies are available regardless of whether the employee has also experienced retaliation. Complaints from employees can be filed with the DOL’s Wage and Hour Division. Employees can also bring a private lawsuit to enforce the reasonable break time requirement or any other alleged violation of the PUMP Act.   

During the brief period before the PUMP Act goes in effect, employers should review their current policies to make sure they are in compliance.

Please contact Mark Fijman or any member of the Phelps Labor and Employment team if you have questions or need advice or guidance.