Under the Pump Act, the almost 9 million previously excluded exempt employees are now entitled to breastfeeding protections, including break time and a private place to pump for up to one year after childbirth.  The Pump Act also extends available remedies for violation of any provision of the pump at work requirements.

The U.S. Department of Labor’s (DOL) Guidance provides additional details regarding enforcement of the PUMP Act.

Break Time Requirements and Compensation

Nursing employees, whether they work onsite or remotely, are entitled to a pump break each time an employee needs to pump for one year following the birth of a child.  The “[t]he frequency, duration, and timing of breaks needed will vary depending on factors related to the nursing employee and the child.”  There is no maximum number of breaks a nursing employee may take to pump per day.  While employers and nursing employees may agree on a general schedule for the employee’s pump breaks, an employer cannot require an employee to adhere to a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump.  Rather, such schedule must be flexible and adjusted as needed.  Furthermore, employers cannot require nursing employees to make up the time they spent on pump breaks because adding work time to their normal schedule could be considered an adverse action made in retaliation for exercising their lactation rights.

Pursuant to the PUMP Act, employers do not need to compensate nursing employees for break time needed to pump breast milk “unless otherwise required by Federal or State law or municipal ordinance.”  For example, nonexempt employees must be compensated for all hours worked and break time to pump will be considered hours worked if an employee is not completely relieved from duty during the entirety of the break or the break is short (usually 20 minutes or less).  For salaried exempt nursing employees that take pump breaks, their salaries may not be reduced to reflect this breaktime.  Furthermore, if an employer provides employees with break time, and the nursing employee chooses to use that time to pump, the employee must be compensated in the same way that other employees are compensated for break time.

Break Location Requirements

The PUMP Act requires employers to provide a private and functional place for employees to express breast milk that is: (i) not a bathroom; (ii) shielded from the view of others; (iii) available each time it is needed by the employee; and (iv) free from intrusion by co-workers and the public.

Employers may designate a vacant office or storage room with a door that closes and covered windows for use by nursing employees.  Alternatively, employers may use partitions or privacy screens, as long as the person using the space is shielded from view and free from intrusion from co-workers and the public.  To ensure privacy, the employer may provide a sign to be displayed when the space is in use or provide a lock for the door.  DOL has created a pump at work door hanger that employers and nursing employees can use for privacy purposes.  For nursing employees who work remotely, they must be free from observation by any employer-provided or required video system, including a computer camera, security camera or Web-conferencing platform, when they are pumping.

To meet the functionality requirements, the space must contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump.  Additionally, nursing employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler or refrigerator.

Enforcement and Protection from Retaliation

An employer who violates a nursing employee’s right to reasonable break time and space to pump is liable for appropriate legal or equitable remedies under the FLSA.  Furthermore, the FLSA provides protection for any employee “discharged or in any other manner discriminated against” because such employee “filed a complaint or instituted or caused to be instituted any proceeding” regarding the pump at work protections, whether such complaint is made orally or in writing.  Remedies under the FLSA for violations of the pump at work or retaliation provisions include employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages, economic losses that resulted from violations, and exemplary damages where appropriate.

To enforce the pump at work or retaliation provisions of the FLSA, an employe may file a complaint with the Wage and Hour Division (WHD) of the DOL or may file a private cause of action.  If an employer has discharged an employee who has made a request for the required break time or private space, discharged an employee who has opposed any employer conduct relating to the Pump Act, or indicated that it has no intention of providing the required private space, employees are able to file a lawsuit immediately.  If an employer has not provided adequate space to pump, employees must first notify their employer of the violation and provide the employer with 10 days to come into compliance with the PUMP Act requirements.

Exemptions

An employer that employs fewer than 50 employees is exempt under the PUMP Act if compliance with such requirements “would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”  The employer bears the burden of proving that compliance would be an undue hardship.  Because the PUMP Act requires space and time for (typically unpaid) breaks for one year after a child’s birth, and the employer must be able to demonstrate “significant” difficulty or expense, employers will be exempt only in limited circumstances.

There are also exemptions under the PUMP Act that affect certain employees of air carriers, rail carriers, and motorcoach services operators.

Posting Requirements

An employer employing any employees subject to the FLSA’s minimum wage, overtime, or pump at work provisions is required to post and keep posted a notice explaining the FLSA in conspicuous places in every establishment where such employees are employed.  WHD published an updated FLSA poster in April 2023 that reflects current pump at work requirements that may be used to meet the FLSA posting requirement. Employers should ensure that they are posting the current version of the poster.

For more information about the PUMP Act, please contact any of the employment law attorneys at Montgomery Purdue.