Breast milk can be incredibly important for a baby’s health, making the ability to express milk while at work a top priority for new mothers. The PUMP Act provides nursing mothers the right to take breaks and to have a place to express milk during the workday. This right extends for one year after the birth of the child. Breaks should be provided for “each time” an eligible employee “has need to express the milk.” This means that the employer cannot limit a mother to a break shorter than she needs to complete the process.
Employer Obligations & the PUMP Act
The employer has an obligation to provide a place to pump milk that is functional for that purpose. The space cannot be a bathroom, and must provide shielding from the view of or intrusion by others. This includes ensuring that the area is not observed electronically by a security camera or web conferencing platform. More than one space may be necessary, depending on the number of nursing mothers in a workplace. The space need not be used solely by nursing mothers, but it must be available whenever needed by the mother. More information can be found at https://www.dol.gov/agencies/whd/nursing-mothers and a full presentation is also available.
Before April 28, 2023, PUMP Act rights were limited to workers who are not exempt from the right to overtime pay. In general, employees are exempt from the Fair Labor Standards Act (FLSA) if they are paid a salary (as opposed to hourly) of not less than $684 per week and if they perform exempt duties. Exempt duties include, but are not limited to, an “executive” who supervises at least 2 other employees or a learned professional whose work requires advanced knowledge gained through an advanced degree.
Obviously, many nursing mothers work in salaried positions performing duties that do not entitle them to overtime pay, but they still have a need to express milk during the workday. Now workers who are non-exempt under the FLSA have the same rights as those described above. An hourly employee need not be paid for that break time if she is completely relieved from performing work duties during those times, and pay is not otherwise required by law or contract. In contrast, if the employee performs work during the breaks, she must be compensated for that time. Unlike hourly workers, salaried workers should receive their full salary even if they take time to express milk during their workday.
Employers with fewer than 50 employees are still exempt from these requirements, if compliance would cause them undue hardship. A small employer may be able to establish undue hardship based on the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of that employer’s business. In addition, certain employees of airlines, railroads, and motorcoach carriers are exempt from nursing employee protections, at least until 2025. Nursing mothers still retain their rights under various state laws that may provide greater protection.
The PUMP Act continues to prohibit retaliation against any nursing mother who files any complaint, either internally with her employer or with the Department of Labor. Retaliation can include discharge or any other form of discrimination against that employee. The PUMP Act is enforced by the Department of Labor through its electronically available complaint process. A complaint must be filed within 2 years of a violation, but a current employee must give her employer 10 days to comply before filing a lawsuit. Damages could include any lost wages, compensatory damages, and attorney’s fees, as well as reinstatement if applicable. Damages can also include an equal amount of lost wages as liquidated damages, punitive damages, and compensatory damages.
Takeaway
These protections for nursing mothers, now extended to FLSA-exempt employees, provide female employees with greater flexibility in balancing their work obligations with the desire to provide the best care possible for their young child. By providing these rights, employers can attract and retain female employees who seek a mom-friendly workplace.
Stacy Hickox is an employment law attorney with Kalijarvi, Chuzi, Newman & Fitch, PC, a Washington, D.C. based law firm. She can be reached at shickox@kcnlaw.com.