DOL Publishes Enforcement Guidance on PUMP Act

Last week, the Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin to its investigative staff about how to interpret, investigate and enforce the new PUMP Act (aka ‘‘Providing Urgent Maternal Protections for Nursing Mothers Act’”).   As reported here in January,  the PUMP Act amended the FLSA to require most employers with at least 50 employees to provide a private space (other than a restroom) where a new mother can express milk during unpaid breaks (if the employee is completely relieved of working during such breaks) for one year after the birth of a child.  There are limited exemptions for employers with fewer than 50 total employees.  The DOL also published a new FLSA poster last month which all employers are required to post and which now includes information about the PUMP Act.   Here are some of the notable enforcement points from the Field Assistance Bulletin:

•      The FLSA requires employers to provide nursing employees reasonable break time each time such employee has need to pump breast milk at work for one year after the child’s birth. An employer may not deny a covered employee a needed break to pump. The frequency, duration, and timing of breaks needed will vary depending on factors related to the nursing employee and the child. Factors such as the location of the space and the effort reasonably necessary to express breast milk, e.g., the pump setup, can also affect the duration of time an employee will need to express milk. An employee and employer may agree to a certain schedule based on the nursing employee’s need to pump, but 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. Additionally, any agreed-upon schedule may need to be adjusted over time if the nursing employee’s pumping needs change. (bolding in original)
•      Employees who telework are also eligible to take pump breaks under the FLSA on the same basis as if they were working on-site.
•      A space temporarily created or converted into a space for pumping or made available when needed by the nursing employee is sufficient provided that the space is shielded from view and free from any intrusion from coworkers and the public and is available each time the employee needs to pump.
•      Employers must ensure the employee’s privacy, for example, by displaying a sign when the space is in use or providing a lock for the door. Employees who are teleworking receive the same protections, including the right to take a pump break that is shielded from view. For example, an employee must be free from observation by an employer provided or required video system, including a computer camera, security camera, or web conferencing platform, when they are expressing breast milk, regardless of the location they are working from.
•      The location must be functional as a space for pumping. A 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. Employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator.
•         Employers with fewer than 50 employees must demonstrate that compliance would impose an undue hardship to claim the small employer exemption from the pump time requirements of the FLSA. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
•         Whether compliance would be an undue hardship is determined on an individual employee basis. The employer bears the burden of proof that compliance with the pump at work provisions would be an undue hardship in the particular circumstances. To assert the exemption, an employer must be able to demonstrate that the employee’s specific needs for pumping at work is an undue hardship due to the difficulty or expense of compliance in light of the size, financial resources, nature, and structure of the employer’s business.
•         Crewmembers of air carriers are exempt from FLSA pump at work protections. “Crewmember” means a person assigned to perform duty in an aircraft during flight time including pilots and flight attendants. The break time and space protections for pumping at work apply as normal to other employees of air carriers.
•         The PUMP Act delays coverage for certain employees of rail [and motorcoach] carriers. The delay applies to members of a train crew involved in the movement of a locomotive or rolling stock or employees who maintain the right of way of a rail carrier employer. . . .  As with the undue hardship exemption for small employers, these exemptions operate as an affirmative defense, for which the employer bears the burden of proof. It is not considered a significant expense to modify or retrofit a locomotive or rolling stock by installing a curtain or other screening protection.
•         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. Employees are protected regardless of whether they have made a complaint orally or in writing. Complaints made to WHD are protected, and most courts have ruled that internal complaints to an employer are also protected. Remedies for retaliation 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.
•         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. See 29 CFR § 516.4. WHD considers an electronic posting to be sufficient to meet the posting requirement if (1) all of the employer’s employees exclusively work remotely, (2) all employees customarily receive information from the employer by electronic means, and (3) all employees have readily available 9 access to electronic posting at all times. See Field Assistance Bulletin No. 2020-7.
•         WHD has published an updated FLSA poster (April 2023) that reflects current pump at work requirements. This poster may be used to meet the FLSA posting requirement and is available for download at no cost. Employers should ensure that they are posting the current version of the poster.

The PUMP Act does not change other provisions of the FLSA.  Exempt employees still are compensated in full-day increments.  Breaks of less than 20 minutes are still generally considered to be working hours. Employers who provide paid breaks must still pay for the same number of breaks to nursing mothers, etc.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Lactation Discrimination in Ohio: Toto: We’re Not In Kansas Anymore.

This morning, the Ohio Supreme Court issued a decision which had initially promised to decide whether Ohio law prohibited an employer from discriminating against an employee who was lactating. However, the per curiam decision (i.e., non-binding authority) remarkably avoided that issue altogether and, instead, affirmed an employer’s right to fire an employee for insubordination when the employee admittedly took unauthorized breaks without the employer’s knowledge or consent. Allen v. Totes/Isotoner Corp., Slip Opinion No. 2009-Ohio-4231. The Court’s action might not have raised an eyebrow if it were not for the facts of the case and that many people in Ohio have watched the oral argument previously broadcast on the Ohio Channel (which is part of PBS).

By way of background, after returning to work following her maternity leave, the plaintiff requested her supervisor for breaks to pump her breast milk to feed her five-month old infant. The employer apparently told her that she could do so during her regular lunch break. Employees were otherwise forbidden to take breaks unless they needed to urinate, etc. The plaintiff decided that her breasts needed pumped more often or later in the morning than her regular break schedule permitted and so, without her supervisor’s knowledge or consent, she began taking an extra break later in the morning to use the breast pump. The supervisor found out and fired her for failing to follow directions. There was some factual dispute about whether the plaintiff ever notified the employer that its prior arrangement was unsuitable before she added or rescheduled her own rest break.

When the plaintiff brought claims for wrongful discharge under the Ohio Pregnancy Discrimination Act, the trial court granted summary judgment to the employer on the grounds that lactation five months after child birth is not related to pregnancy because lactation would have stopped in the natural course of events if the employee had decided not to breast feed her baby. (In his mind, the fact that she was lactating five months later was related to her decision to breast feed and not to her pregnancy). This was important because pregnancy is covered by statute and breastfeeding is not. The Court of Appeals affirmed, but only on the grounds that she did not satisfy her prima facie case and an employer may legitimately fire an employee for taking an unauthorized rest break.

As mentioned, a majority of the Supreme Court could not agree on a basis to affirm or reverse the judgment. While a majority could agree on affirming the judgment, they could not agree why. Most of the majority apparently agreed that it was non-discriminatory to fire an employee for taking unauthorized rest breaks. However, they could not agree whether the act of using a breast pump put the plaintiff into a protected status under the Pregnancy Discrimination Act and refused to address the issue at all on the disingenuous rationale that it would constitute an advisory opinion.

Surprisingly, both Chief Justice Moyer and Justice O’Connor agreed that lactation should be a covered activity under the Pregnancy Discrimination Act. As Justice O’Connor noted in her opinion, the relevant Ohio statute includes as sex discrimination any action taken “because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes * * *.” R.C. 4112.01(B).” The oral argument in this case spent most of the debate focusing on this language. Finding no legal support for her position in any federal court decision on the issue (even though she acknowledged that the Ohio statutory language quotes the federal Pregnancy Discrimination Act verbatim) and even though a number of states have passed specific breastfeeding protection statutes to address the lapse, she decided it was beyond dispute that Ohio’s statute covered breastfeeding.

However, both Moyer and O’Conner felt that the plaintiff was asking for preferential treatment by taking an extra break to pump breast milk, and thus, could be fired like any other employee for taking an unauthorized rest break. They do not believe that Ohio law requires employers to give breastfeeding/breastpump breaks to employees. Unlike the ADA, the federal PDA does not require preferential treatment or reasonable accommodation for pregnant women. (Ohio law, on the other hand, mandates a reasonable maternity leave even when an employer does not provide any medial leave). On a strict comparative basis analysis, the plaintiff did not show that she was fired for engaging in the same conduct as others because no one else was taking an extra fifteen-minute break each day to pump breast mile (or any other reason). While I agree that an employee who takes surreptitious breaks or violates her supervisor’s direct order has been insubordinate, I am not certain that this issue is so simple since there seemed to be a factual dispute about whether the employee was treated differently on account of her breastfeeding break or whether Ohio law requires some sort of reasonable accommodation (assuming, of course, that lactating is covered by the PDA, which I do not think it is).

Justice Pfeifer agreed that the plaintiff’s lactating was covered by the Pregnancy Discrimination Act, but felt that the plaintiff was discriminated against because she was fired for taking a rest break for the purpose of pumping breast milk, but admittedly would not have been fired if she had taken the same rest break in order to urinate. While this rationale has its benefits, is an employer required to treat breastfeeding the same as urination? If so, would employers then have an incentive to ban urination breaks? Is that a world in which we want to live? Are there time limits on either (how long you have to urinate vs pump breast milk)? Is it relevant that she may never have told the employer that its prior arrangement was insufficient? Does the employee get to decide for herself when she gets to take a break and how often or does she have to work that out first with her employer?

In any event, Isotoner now finds itself in the unenviable position of manufacturing a product (i.e., fashion gloves, slippers and umbrellas) to women who it will not permit to take a daily fifteen minute break to pump breast milk for suckling infants. Ohio employers are left unsure whether a future court decision will address this question or whether the Ohio legislature will eventually take it up. For now, there is no law in Ohio giving women the right to take breaks to pump breast milk for their infants.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-4231.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.