Sixth Circuit Reverses Employer's Summary Judgment on Willful FLSA Violations

Last month, the Sixth Circuit reversed an employer’s summary judgment on allegedly willful FLSA violations asserted by the Department of Labor involving recordkeeping, and overtime wages.    Walsh v. KDE Equine, LLC, Nos. 21-5054/5133  (6^th Cir. 12/22/22). “To show that an employer acted willfully, the DOL must prove that the employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.”  In this case, the Court found that the employer’s failure to maintain accurate records of working hours and to pay overtime compensation was willful because, in part, it “(1) had previously been investigated and found in violation of the FLSA, (2) was enjoined by a district court from continuing to violate the statute and ordered to pay unpaid overtime compensation, and (3) made assurances that it would comply in the future.”  The DOL showed that payroll was processed before the mostly inaccurate time sheets even arrived.   The Court rejected the employer’s defenses concerning its pay practices as not complying with the DOL regulations governing lump sum payments, fluctuating work week and § 778.309 (fixed fee for regular overtime).   The trial court had already ordered the payment of more than $211K in back pay before the Court's ruling. 

According to the Court’s opinion, the employer allegedly failed to pay mandatory minimum and overtime wages to, and to maintain accurate records of working hours involving, hot walkers and grooms at its stables when they generally worked between 44 and 52 hours each week.   Instead, the employer paid them on a salary basis with extra pay for extra work.  “Most of the employees did not submit timesheets for the additional hours worked, while others submitted inaccurate time sheets.”  The DOL “requested that the court find that KDE acted willfully which would warrant liquidated damages and a three-year statute of limitations period.”  On competing summary judgment motions, the trial court ruled against the DOL on willful violations and instead granted the employer summary judgment on that issue.  At the bench trial, the trial court ruled in favor of the DOL and ordered the employer to pay $211,541.76 in back wages. On appeal, the Court affirmed the judgment on the substantive claims, but reversed the employer’s summary judgment on whether its conduct was willful under the FLSA, entitling the DOL to a trial on that issue and possible liquidated damages and an extra year for the limitations period on the remaining claims.

There is a two-year statute of limitations for an ordinary violation under the FLSA. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135 (1988). When the violation is willful, however, the statute of limitations is three years. Id. An employer who violates § 6 or § 7 of the FLSA is liable to the affected employees in the amount of their unpaid minimum wages or overtime compensation plus an equal amount as liquidated damages. 29 U.S.C. § 216(b).

To show that an employer acted willfully, the DOL must prove that the employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” See McLaughlin, 486 U.S. at 133. This court has found an employer to have known or acted with reckless disregard where the employer “had actual notice of the requirements of the FLSA by virtue of earlier violations, his agreement to pay unpaid overtime wages, and his assurance of future compliance with the FLSA.” . . .

                . . .

            Whether a defendant willfully violated the FLSA is a factual question. . . . An employer having notice of the FLSA requirements by virtue of prior violations and assurances of future compliance is a material fact that we have found to be highly indicative of willfulness. . . . . Accordingly, the factual disputes as to whether an employer's prior violations and assurances of future compliance gave the employer actual notice of its obligations under the FLSA raise enough of a genuine issue of material fact to preclude summary judgment.

The Court rejected the employer’s argument that its retention of a payroll expert following its prior injunction and consent judgment, requiring employees to complete their own time sheets and posting of labor law signs in its barns and workplaces required judgment in its favor on the willfulness issue in light of the DOL’s contrary evidence that the employer attempted to conceal its violations by changing payroll records to reflect that the employees were paid on an hourly and not salary basis and that paychecks had been issued and payroll processed before the time sheets even arrived.

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.

Unanimous Sixth Circuit Affirms and Narrows Enforcement of Federal Contractor COVID Mandate

Yesterday, a unanimous Sixth Circuit both affirmed and narrowed a preliminary injunction entered against President Biden’s order that “all federal agencies  . . . include in their new contracts a provision obligating contract recipients to require their employees to wear face masks at work and be vaccinated against COVID-19.”   Kentucky v. Biden, No. 21-6147 (6^th Cir. 1-12-23).   The Court agreed that Biden had exceeded his authority under the Federal Property and Administrative Services Act of 1949.  The Court found that the Act’s statement of purpose did not authorize, and has never empowered, the government to take any particular action.   Further, the prefatory statement focuses on government efficiency, not contractor efficiency.  However, the Court narrowed the injunction to enforcement of the order against the plaintiffs – i.e., States of Ohio, Kentucky and Tennessee and two Ohio sheriffs’ offices --  and found that the district court had exceeded its authority in enjoining enforcement of the order against all federal contractors and subcontractors in all three states (who presumably will need to file their own preliminary injunctions if the government does not voluntarily withdraw the order, which has been on hold since it was earlier enjoined in Georgia).   

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.

While You Were Celebrating, the NLRB Has Been Busy

As has become common, the NLRB issued a number of notable decisions following election season (and the Georgia special election).  Last month, it issued three notable decisions (following a few notable actions last Fall) and Congress increased its funding by $25M at the end of the month.   Among other things, it will for the first time permit successful charging parties to recover more than back pay for harm incurred from NLRA violations (i.e., compensatory damages).  It will also presume that off duty employees of contractors cannot be excluded from private property if they are engaged in protected concerted activities.  And, it will permit unions to form units based on who wants to join, which could result in a proliferation of bargaining units.

On December 13, 2022, the NLRB sua sponte expanded the type of financial relief that a successful employee may recover after filing an unfair labor practice (but without ever using the term, compensatory damages).  Thryv, Inc., Nos. 20–CA–250250 and 20–CA–251105.   The employer was found to have unlawfully and unilaterally laid off six employees without first bargaining in good faith to impasse with the union.  As “make whole relief,” and without such a request from the union or any of the affected the employees, the NLRB ordered more than just reinstatement with back pay, which has been the traditional remedy for decades.  Rather, the Board ordered the employer “to compensate affected employees for all direct or foreseeable pecuniary harms that these employees suffer as a result of the respondent’s un[1]fair labor practice.”  In the civil litigation context, this is called compensatory damages:

We conclude that in all cases in which our standard remedy would include an order for make-whole relief, the Board will expressly order that the respondent compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of the respondent’s unfair labor practice.  As we explain below, any relief must be specifically calculated and requires the General Counsel to present evidence in compliance demonstrating the amount of pecuniary harm, the direct or foreseeable nature of that harm, and why that harm is due to the respondent’s unfair labor practice. The respondent, in turn, will have the opportunity to present evidence challenging the amount of money claimed, argue that the harm was not direct or foreseeable, or that it would have occurred regardless of the unfair labor practice.

The Board then discussed the reason for its radical change in more than five long pages. 

Three days later, the NLRB decided to return to the Obama-era standard for excluding individuals from private property.    In Bexar County Performing Arts Center Foundation, No. 16–CA–193636, the Board “abandoned” the current legal standard and returned to the old: 

Under the New York New York test, a property owner may lawfully exclude from its property off-duty employees who regularly work on the property for an onsite contractor and who seek to engage in Section 7 activity on the property only where the property owner is able to demonstrate that the contractor employees’ Section 7 activity significantly interferes with the use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline.

In this case, union musicians wanted to enter a theatre which the ballet company (and the San Antonio Symphony and Opera San Antonio) leased in order to publicize their dispute with leaflets with the ballet company, which had opted to use recorded music instead of the union musicians for its performance of Sleeping Beauty.  The theatre (and city police) prohibited the musicians from leafletting at the theatre or the sidewalk and pushed them across the street.

The Board saw

no reason why contractor employees—just because their employer does not own the property where they regularly work—should not enjoy a similar opportunity to exercise their statutory rights at the place where they regularly work.

Accordingly, the Board found that the theatre violated the musicians’ rights under the NLRA:

by preventing the Symphony employees from distributing flyers on the sidewalk in front of the Tobin Center on the Respondent’s property about Ballet San Antonio’s use of recorded music, which deprived the Symphony employees of the work of performing that music live. The Symphony employees work regularly at the Tobin Center, and the Respondent has not demonstrated that the leafleting would have significantly interfered with the use of its property or that it had another legitimate business reason for denying them access.

On December 14, the Board relaxed the standard for determining the scope of a bargaining unit and returned to the Obama-era standard from Specialty Healthcare: “where a labor union seeks to represent a unit that contains some, but not all, of the job classifications at a particular workplace.”  In other words, the union can decide to “organize” only those employees who want to join and exclude the rest (who, presumably, would vote against the union and prevent it from obtaining majority support necessary to form a new unit).  American Steel Construction, Inc., No. 07–RC– 269162.    These are sometimes referred to as microunits. 

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.

FTC Proposes to Ban Existing and Future Non-Compete Clauses

This morning, the Federal Trade Commission proposed a new rule (for public comment for the next 60 days) that would ban non-competition clauses, require employers to rescind existing clauses and employers to notify current and former employees that they are no longer enforceable.    The rule would not apply to the sale of a business or its assets (if the individual owned at least 25% of the business) or to franchisees and does not prohibit non-solicitation or non-disclosure clauses unless they are so overly broad as to constitute a non-compete.

The crux of the proposed rule is in how non-compete clauses are defined:

(1) Non-compete clause means a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.

(2) Functional test for whether a contractual term is a non-compete clause. The term non-compete clause includes a contractual term that is a de facto non-compete clause because it has the effect of prohibiting the worker from seeking or accepting employment with a person or operating a business after the conclusion of the worker’s employment with the employer. For example, the following types of contractual terms, among others, may be de facto non-compete clauses:

i. A non-disclosure agreement between an employer and a worker that is written so broadly that it effectively precludes the worker from working in the same field after the conclusion of the worker’s employment with the employer.

ii. A contractual term between an employer and a worker that requires the worker to pay the employer or a third-party entity for training costs if the worker’s employment terminates within a specified time period, where the required payment is not reasonably related to the costs the employer incurred for training the worker.

Employers would not only be required to not use non-competes, they would be required to both rescind them and to send individualized notices to current and former employees who are subject to pre-existing non-compete clauses:

(A) An employer that rescinds a non-compete clause pursuant to paragraph (b)(1) of this section must provide notice to the worker that the worker’s non-compete clause is no longer in effect and may not be enforced against the worker. The employer must provide the notice to the worker in an individualized communication. The employer must provide the notice on paper or in a digital format such as, for example, an email or text message. The employer must provide the notice to the worker within 45 days of rescinding the non-compete clause.

(B) The employer must provide the notice to a worker who currently works for the employer. The employer must also provide the notice to a worker who formerly worked for the employer, provided that the employer has the worker’s contact information readily available.

(C) The following model language constitutes notice to the worker that the worker’s non-compete clause is no longer in effect and may not be enforced against the worker, for purposes of paragraph (b)(2)(A) of this section. An employer may also use different language, provided that the notice communicates to the worker that the worker’s non-compete clause is no longer in effect and may not be enforced against the worker.

A new rule enforced by the Federal Trade Commission makes it unlawful for us to maintain a non-compete clause in your employment contract. As of [DATE 180 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE], the non-compete clause in your contract is no longer in effect. This means that once you stop working for [EMPLOYER NAME]:

You may seek or accept a job with any company or any person—even if they compete with [EMPLOYER NAME].

You may run your own business—even if it competes with [EMPLOYER NAME].

You may compete with [EMPLOYER NAME] at any time following your employment with [EMPLOYER NAME].

The FTC’s new rule does not affect any other terms of your employment contract. For more information about the rule, visit https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking.

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.

Budget Bill Enacts Pregnant Workers Fairness Act and Providing Urgent Maternal Protections for Nursing Mothers Act

On December 29, President Biden signed a new budget bill and it contained two new statutes of interest to employers and employees.    In 180 days, the Pregnant Workers Fairness Act will essentially apply the ADA to pregnant employees (who would not otherwise be considered disabled) and require employers to provide them with reasonable accommodations (other than a paid or unpaid leave of absence) to enable them to continue working.    The Providing Urgent Maternal Protections for Nursing Mothers Act (or PUMP Act) immediately amends the FLSA and requires 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.  The PUMP Act has already been applicable to most large employers.  The full text of both statutes are included below.

The key provisions of the PWFA are as follows:

·        => It incorporates the requirements into Title VII and follows Title VII remedies;

·        => It applies to both employees and applicants;

·         => It is a violation of the statute for an employer to

o   “not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;

o   require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;

o   deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee;

o   require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee; or

o   take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

·          => As with most employment statute, employers may not retaliate against an employee who exercises her rights under this statute.

·             =>  If an unlawful employment practice involves the provision of a reasonable accommodation pursuant to this division or regulations implementing this division, damages may not be awarded under section 1977A of the Revised Statutes (42 U.S.C. 1981a) if the covered entity demonstrates good faith efforts, in consultation with the employee with known limitations related to pregnancy, childbirth, or related medical conditions who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such employee with an equally effective opportunity and would not cause an undue hardship on the operation of the covered entity.

·       => The EEOC is directed to publish regulations clarifying the requirements within one year.

·        => Undue hardship and reasonable accommodation have the same meaning as in the ADA and the parties are required to engage in an interactive process to determine an effective accommodation;

·       => The term ``known limitation'' means physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee's representative has communicated to the employer whether or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12102);

·         =>   The term ``qualified employee'' means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if--

(A) any inability to perform an essential function is for a temporary period;

              (B) the essential function could be performed in the near future; and

(C) the inability to perform the essential function can be reasonably accommodated;

·            => The statute intends to abrogate the States’ 11th Amendment immunity from damages:  

A State shall not be immune under the 11th Amendment to the Constitution from an action in a Federal or State court of competent jurisdiction for a violation of this division. In any action against a State for a violation of this division, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.

The key provisions of the PUMP Act are as follows:

• Employers are required to provide “a reasonable break time for an employee to express breast milk for such employee's nursing child for 1 year after the child's birth each time such employee has need to express the milk; and a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
• Generally, employers are not required to compensate an employee receiving reasonable break time for any time spent during the workday for such purpose unless otherwise required by Federal or State law or municipal ordinance (i.e., paid on a salary basis).
• Break time shall be considered hours worked if the employee is not completely relieved from duty during the entirety of such break.
• There is an exemption for small employers with fewer than 50 employees “if 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.”
• There are exemptions for air carriers and special rules for rail carriers.
• Unlike other federal employment statutes, there is a requirement prior to filing a lawsuit that the employee give the employer at least 10 days notice and opportunity to cure unless the employer fired the employee for requesting a break to express milk in a private place or the employer indicated that it has no intention of complying with such a request. 

For those of you who delight in the nitty gritty:  Here are the sections of the budget bill which pertain to these new statutes:  

DIVISION II--PREGNANT WORKERS

 

    SEC. 101. SHORT TITLE.

    This division may be cited as the ``Pregnant Workers Fairness

Act''.

    SEC. 102. DEFINITIONS.

    As used in this division--

        (1) the term ``Commission'' means the Equal Employment  Opportunity Commission;

        (2) the term ``covered entity''--

            (A) has the meaning given the term ``respondent'' in section 701(n) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(n)); and

            (B) includes--

                (i) an employer, which means a person engaged in industry affecting commerce who has 15 or more employees as defined in section 701(b) of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e(b));

                (ii) an employing office, as defined in section 101 of the Congressional Accountability Act of 1995 (2 U.S.C. 1301) and section 411(c) of title 3, United States Code;

                (iii) an entity employing a State employee described in section 304(a) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e-16c(a)); and

                (iv) an entity to which section 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies;

        (3) the term ``employee'' means--

            (A) an employee (including an applicant), as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C.  2000e(f));

            (B) a covered employee (including an applicant), as defined in section 101 of the Congressional Accountability Act of 1995  (2 U.S.C. 1301), and an individual described in section 201(d) of that Act (2 U.S.C. 1311(d));

            (C) a covered employee (including an applicant), as defined in section 411(c) of title 3, United States Code;

            (D) a State employee (including an applicant) described in section 304(a) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e-16c(a)); or

            (E) an employee (including an applicant) to which section 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies;

        (4) the term ``known limitation'' means physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee's representative has communicated to the employer whether  or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102);

        (5) the term ``person'' has the meaning given such term in section 701(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(a));

        (6) the term ``qualified employee'' means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if--

            (A) any inability to perform an essential function is for a temporary period;

            (B) the essential function could be performed in the near future; and

            (C) the inability to perform the essential function can be reasonably accommodated; and

        (7) the terms ``reasonable accommodation'' and ``undue hardship'' have the meanings given such terms in section 101 of the  Americans with Disabilities Act of 1990 (42 U.S.C. 12111) and shall be construed as such terms are construed under such Act and as set forth in the regulations required by this division, including with regard to the interactive process that will typically be used to determine an appropriate reasonable accommodation.

    SEC. 103. NONDISCRIMINATION WITH REGARD TO REASONABLE

      ACCOMMODATIONS RELATED TO PREGNANCY.

    It shall be an unlawful employment practice for a covered entity

to--

        (1) not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the  operation of the business of such covered entity;

        (2) require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process referred to in section 102(7);

        (3) deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the    qualified employee;

        (4) require a qualified employee to take leave, whether paid or  unpaid, if another reasonable accommodation can be provided to the  known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee; or

        (5) take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related    medical conditions of the employee.

    SEC. 104. REMEDIES AND ENFORCEMENT.

    (a) Employees Covered by Title VII of the Civil Rights Act of 1964.--

        (1) In general.--The powers, remedies, and procedures provided in sections 705, 706, 707, 709, 710, and 711 of the Civil Rights  Act of 1964 (42 U.S.C. 2000e-4 et seq.) to the Commission, the Attorney General, or any person alleging a violation of title VII of such Act (42 U.S.C. 2000e et seq.) shall be the powers,  remedies, and procedures this division provides to the Commission, the Attorney General, or any person, respectively, alleging an  unlawful employment practice in violation of this division against an employee described in section 102(3)(A) except as provided in  paragraphs (2) and (3) of this subsection.

        (2) Costs and fees.--The powers, remedies, and procedures provided in subsections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988) shall be the powers, remedies, and procedures this division provides to the Commission, the Attorney General, or any person alleging such practice.

        (3) Damages.--The powers, remedies, and procedures provided in section 1977A of the Revised Statutes (42 U.S.C. 1981a), including the limitations contained in subsection (b)(3) of such section 1977A, shall be the powers, remedies, and procedures this division   provides to the Commission, the Attorney General, or any person alleging such practice (not an employment practice specifically excluded from coverage under section 1977A(a)(1) of the Revised Statutes (42 U.S.C. 1981a(a)(1))).

    (b) Employees Covered by Congressional Accountability Act of 1995.--

        (1) In general.--The powers, remedies, and procedures provided

    in the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et

    seq.) for the purposes of addressing allegations of violations of

    section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)) shall be the

    powers, remedies, and procedures this division provides to address

    an allegation of an unlawful employment practice in violation of

    this division against an employee described in section 102(3)(B),

    except as provided in paragraphs (2) and (3) of this subsection.

        (2) Costs and fees.--The powers, remedies, and procedures

    provided in subsections (b) and (c) of section 722 of the Revised

    Statutes (42 U.S.C. 1988) for the purposes of addressing

    allegations of such a violation shall be the powers, remedies, and

    procedures this division provides to address allegations of such

    practice.

        (3) Damages.--The powers, remedies, and procedures provided in

    section 1977A of the Revised Statutes (42 U.S.C. 1981a), including

    the limitations contained in subsection (b)(3) of such section

    1977A, for purposes of addressing allegations of such a violation,

    shall be the powers, remedies, and procedures this division

    provides to address any allegation of such practice (not an

    employment practice specifically excluded from coverage under

    section 1977A(a)(1) of the Revised Statutes (42 U.S.C.

    1981a(a)(1))).

    (c) Employees Covered by Chapter 5 of Title 3, United States

Code.--

        (1) In general.--The powers, remedies, and procedures provided

    in chapter 5 of title 3, United States Code, to the President, the

    Commission, the Merit Systems Protection Board, or any person

    alleging a violation of section 411(a)(1) of such title shall be

    the powers, remedies, and procedures this division provides to the

    President, the Commission, the Board, or any person, respectively,

    alleging an unlawful employment practice in violation of this

    division against an employee described in section 102(3)(C), except

    as provided in paragraphs (2) and (3) of this subsection.

        (2) Costs and fees.--The powers, remedies, and procedures

    provided in subsections (b) and (c) of section 722 of the Revised

    Statutes (42 U.S.C. 1988) shall be the powers, remedies, and

    procedures this division provides to the President, the Commission,

    the Board, or any person alleging such practice.

        (3) Damages.--The powers, remedies, and procedures provided in

    section 1977A of the Revised Statutes (42 U.S.C. 1981a), including

    the limitations contained in subsection (b)(3) of such section

    1977A, shall be the powers, remedies, and procedures this division

    provides to the President, the Commission, the Board, or any person

    alleging such practice (not an employment practice specifically

    excluded from coverage under section 1977A(a)(1) of the Revised

    Statutes (42 U.S.C. 1981a(a)(1))).

    (d) Employees Covered by Government Employee Rights Act of 1991.--

        (1) In general.--The powers, remedies, and procedures provided

    in sections 302 and 304 of the Government Employee Rights Act of

    1991 (42 U.S.C. 2000e-16b; 2000e-16c) to the Commission or any

    person alleging a violation of section 302(a)(1) of such Act (42

    U.S.C. 2000e-16b(a)(1)) shall be the powers, remedies, and

    procedures this division provides to the Commission or any person,

    respectively, alleging an unlawful employment practice in violation

    of this division against an employee described in section

    102(3)(D), except as provided in paragraphs (2) and (3) of this

    subsection.

        (2) Costs and fees.--The powers, remedies, and procedures

    provided in subsections (b) and (c) of section 722 of the Revised

    Statutes (42 U.S.C. 1988) shall be the powers, remedies, and

    procedures this division provides to the Commission or any person

    alleging such practice.

        (3) Damages.--The powers, remedies, and procedures provided in

    section 1977A of the Revised Statutes (42 U.S.C. 1981a), including

    the limitations contained in subsection (b)(3) of such section

    1977A, shall be the powers, remedies, and procedures this division

    provides to the Commission or any person alleging such practice

    (not an employment practice specifically excluded from coverage

    under section 1977A(a)(1) of the Revised Statutes (42 U.S.C.

    1981a(a)(1))).

    (e) Employees Covered by Section 717 of the Civil Rights Act of

1964.--

        (1) In general.--The powers, remedies, and procedures provided

    in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16)

    to the Commission, the Attorney General, the Librarian of Congress,

    or any person alleging a violation of that section shall be the

    powers, remedies, and procedures this division provides to the

    Commission, the Attorney General, the Librarian of Congress, or any

    person, respectively, alleging an unlawful employment practice in

    violation of this division against an employee described in section

    102(3)(E), except as provided in paragraphs (2) and (3) of this

    subsection.

        (2) Costs and fees.--The powers, remedies, and procedures

    provided in subsections (b) and (c) of section 722 of the Revised

    Statutes (42 U.S.C. 1988) shall be the powers, remedies, and

    procedures this division provides to the Commission, the Attorney

    General, the Librarian of Congress, or any person alleging such

    practice.

        (3) Damages.--The powers, remedies, and procedures provided in

    section 1977A of the Revised Statutes (42 U.S.C. 1981a), including

    the limitations contained in subsection (b)(3) of such section

    1977A, shall be the powers, remedies, and procedures this division

    provides to the Commission, the Attorney General, the Librarian of

    Congress, or any person alleging such practice (not an employment

    practice specifically excluded from coverage under section

    1977A(a)(1) of the Revised Statutes (42 U.S.C. 1981a(a)(1))).

    (f) Prohibition Against Retaliation.--

        (1) In general.--No person shall discriminate against any  employee because such employee has opposed any act or practice made unlawful by this division or because such employee made a charge, testified, assisted, or participated in any manner in an  investigation, proceeding, or hearing under this division.

        (2) Prohibition against coercion.--It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of such individual having exercised or enjoyed, or on account of such individual  having aided or encouraged any other individual in the exercise or  enjoyment of, any right granted or protected by this division. 

 

       (3) Remedy.--The remedies and procedures otherwise provided for under this section shall be available to aggrieved individuals with respect to violations of this subsection.

    (g) Limitation.--Notwithstanding subsections (a)(3), (b)(3), (c)(3), (d)(3), and (e)(3), if an unlawful employment practice involves the provision of a reasonable accommodation pursuant to this division or regulations implementing this division, damages may not be awarded under section 1977A of the Revised Statutes (42 U.S.C. 1981a) if the covered entity demonstrates good faith efforts, in consultation with the employee with known limitations related to pregnancy, childbirth, or related medical conditions who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such employee with an equally effective opportunity and would not cause an undue hardship on the operation of the covered entity.

    SEC. 105. RULEMAKING.

    (a) EEOC Rulemaking.--Not later than 1 year after the date of enactment of this Act, the Commission shall issue regulations in an accessible format in accordance with subchapter II of chapter 5 of title 5, United States Code, to carry out this division. Such regulations shall provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.

    (b) OCWR Rulemaking.--

        (1) In general.--Not later than 6 months after the Commission

    issues regulations under subsection (a), the Board (as defined in

    section 101 of the Congressional Accountability Act of 1995 (2

    U.S.C. 1301)) shall (in accordance with section 304 of the

    Congressional Accountability Act of 1995 (2 U.S.C. 1384)), issue

    regulations to implement the provisions of this division made

    applicable to employees described in section 102(3)(B), under

    section 104(b).

        (2) Parallel with agency regulations.--The regulations issued

    under paragraph (1) shall be the same as substantive regulations

    issued by the Commission under subsection (a) except to the extent

    that the Board may determine, for good cause shown and stated

    together with the regulations issued under paragraph (1) that a

    modification of such substantive regulations would be more

    effective for the implementation of the rights and protection under

    this division.

    SEC. 106. WAIVER OF STATE IMMUNITY.

    A State shall not be immune under the 11th Amendment to the Constitution from an action in a Federal or State court of competent jurisdiction for a violation of this division. In any action against a State for a violation of this division, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.

    SEC. 107. RELATIONSHIP TO OTHER LAWS.

    (a) In General.--Nothing in this division shall be construed-- 

       (1) to invalidate or limit the powers, remedies, and procedures     under any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for individuals affected by pregnancy, childbirth, or related medical conditions; or

        (2) by regulation or otherwise, to require an employer- sponsored health plan to pay for or cover any particular item, procedure, or treatment or to affect any right or remedy available under any other Federal, State, or local law with respect to any such payment or coverage requirement.

    (b) Rule of Construction.--This division is subject to the applicability to religious employment set forth in section 702(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-1(a)).

    SEC. 108. SEVERABILITY.

    If any provision of this division or the application of that provision to particular persons or circumstances is held invalid or found to be unconstitutional, the remainder of this division and the application of that provision to other persons or circumstances shall not be affected.

    SEC. 109. EFFECTIVE DATE.

    This division shall take effect on the date that is 180 days after the date of enactment of this Act.

 

DIVISION KK--PUMP FOR NURSING MOTHERS ACT

 

    SEC. 101. SHORT TITLE.

    This division may be cited as the ``Providing Urgent Maternal Protections for Nursing Mothers Act'' or the ``PUMP for Nursing Mothers Act''.

    SEC. 102. BREASTFEEDING ACCOMMODATIONS IN THE WORKPLACE.

    (a) Expanding Employee Access to Break Time and Space.--The Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) is amended--

        (1) in section 7 (29 U.S.C. 207), by striking subsection (r);

    and

        (2) by inserting after section 18C (29 U.S.C. 218c) the   following:

    ``SEC. 18D. BREASTFEEDING ACCOMMODATIONS IN THE WORKPLACE.

    ``(a) In General.--An employer shall provide--

        ``(1) a reasonable break time for an employee to express breast milk for such employee's nursing child for 1 year after the child's birth each time such employee has need to express the milk; and

        ``(2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

    ``(b) Compensation.--

        ``(1) In general.--Subject to paragraph (2), an employer shall not be required to compensate an employee receiving reasonable break time under subsection (a)(1) for any time spent during the  workday for such purpose unless otherwise required by Federal or     State law or municipal ordinance.

        ``(2) Relief from duties.--Break time provided under subsection  (a)(1) shall be considered hours worked if the employee is not completely relieved from duty during the entirety of such break. 

    ``(c) Exemption for Small Employers.--An employer that employs less than 50 employees shall not be subject to the requirements of this section, if 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.

    ``(d) Exemption for Crewmembers of Air Carriers.--

        ``(1) In general.--An employer that is an air carrier shall not     be subject to the requirements of this section with respect to an  employee of such air carrier who is a crewmember 

        ``(2) Definitions.--In this subsection:

            ``(A) Air carrier.--The term `air carrier' has the meaning given such term in section 40102 of title 49, United States  Code.

            ``(B) Crewmember.--The term `crewmember' has the meaning

        given such term in section 1.1 of title 14, Code of Federal

        Regulations (or successor regulations).

    ``(e) Applicability to Rail Carriers.--

        ``(1) In general.--Except as provided in paragraph (2), an

    employer that is a rail carrier shall be subject to the

    requirements of this section.

        ``(2) Certain employees.--An employer that is a rail carrier

    shall be subject to the requirements of this section with respect

    to an employee of such rail carrier who is a member of a train crew

    involved in the movement of a locomotive or rolling stock or who is

    an employee who maintains the right of way, provided that

    compliance with the requirements of this section does not--

            ``(A) require the employer to incur significant expense,

        such as through the addition of such a member of a train crew

        in response to providing a break described in subsection (a)(1)

        to another such member of a train crew, removal or retrofitting

        of seats, or the modification or retrofitting of a locomotive

        or rolling stock; or

            ``(B) result in unsafe conditions for an individual who is

        an employee who maintains the right of way.

        ``(3) Significant expense.--For purposes of paragraph (2)(A),

    it shall not be considered a significant expense to modify or

    retrofit a locomotive or rolling stock by installing a curtain or

    other screening protection.

        ``(4) Definitions.--In this subsection:

            ``(A) Employee who maintains the right of way.--The term

        `employee who maintains the right of way' means an employee who

        is a safety-related railroad employee described in section

        20102(4)(C) of title 49, United States Code.

            ``(B) Rail carrier.--The term `rail carrier' means an

        employer described in section 13(b)(2).

            ``(C) Train crew.--The term `train crew' has the meaning

        given such term as used in chapter II of subtitle B of title

        49, Code of Federal Regulations (or successor regulations).

    ``(f) Applicability to Motorcoach Services Operators.--

        ``(1) In general.--Except as provided in paragraph (2), an

    employer that is a motorcoach services operator shall be subject to

    the requirements of this section.

        ``(2) Employees who are involved in the movement of a

    motorcoach.--An employer that is a motorcoach services operator

    shall be subject to the requirements of this section with respect

    to an employee of such motorcoach services operator who is involved

    in the movement of a motorcoach provided that compliance with the

    requirements of this section does not--

            ``(A) require the employer to incur significant expense,

        such as through the removal or retrofitting of seats, the

        modification or retrofitting of a motorcoach, or unscheduled

        stops; or

            ``(B) result in unsafe conditions for an employee of a

        motorcoach services operator or a passenger of a motorcoach.

        ``(3) Significant expense.--For purposes of paragraph (2)(A),

    it shall not be considered a significant expense--

            ``(A) to modify or retrofit a motorcoach by installing a

        curtain or other screening protection if an employee requests

        such a curtain or other screening protection; or

            ``(B) for an employee to use scheduled stop time to express

        breast milk.

        ``(4) Definitions.--In this subsection:

            ``(A) Motorcoach; motorcoach services.--The terms

        `motorcoach' and `motorcoach services' have the meanings given

        the terms in section 32702 of the Motorcoach Enhanced Safety

        Act of 2012 (49 U.S.C. 31136 note).

            ``(B) Motorcoach services operator.--The term `motorcoach

        services operator' means an entity that offers motorcoach

        services.

    ``(g) Notification Prior to Commencement of Action.--

        ``(1) In general.--Except as provided in paragraph (2), before  commencing an action under section 16(b) for a violation of  subsection (a)(2), an employee shall--

            ``(A) notify the employer of such employee of the failure to provide the place described in such subsection; and 

            ``(B) provide the employer with 10 days after such notification to come into compliance with such subsection with respect to the employee.

        ``(2) Exceptions.--Paragraph (1) shall not apply in a case in  which--

            ``(A) the employee has been discharged because the employee--

                ``(i) has made a request for the break time or place described in subsection (a); or

                ``(ii) has opposed any employer conduct related to this section; or

            ``(B) the employer has indicated that the employer has no intention of providing the place described in subsection (a)(2).

    ``(h) Interaction With State and Federal Law.-- 

       ``(1) Laws providing greater protection.--Nothing in this section shall preempt a State law or municipal ordinance that provides greater protections to employees than the protections provided for under this section.

        ``(2) No effect on title 49 preemption.--This section shall have no effect on the preemption of a State law or municipal ordinance that is preempted under subtitle IV, V, or VII of title 49, United States Code.''.

    (b) Clarifying Remedies.--The Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) is amended--

        (1) in section 15(a) (29 U.S.C. 215(a))--

            (A) by striking the period at the end of paragraph (5) and

        inserting ``; and''; and

            (B) by adding at the end the following:

        ``(6) to violate any of the provisions of section 18D.''; and 

 (2) in section 16(b) (29 U.S.C. 216(b)), by striking

    ``15(a)(3)'' each place the term appears and inserting ``15(a)(3)

    or 18D''.

    (c) Authorizing Employees to Temporarily Obscure the Field of View of an Image Recording Device on a Locomotive or Rolling Stock While Expressing Breast Milk.--Section 20168(f) of title 49, United States Code, is amended--

        (1) by striking ``A railroad carrier'' and inserting the

    following:

        ``(1) In general.--Except as provided in paragraph (2), a

    railroad carrier''; and

        (2) by adding at the end the following:

        ``(2) Temporarily obscuring field of view of an image recording

    device while expressing breast milk.--

            ``(A) In general.--For purposes of expressing breast milk,

        an employee may temporarily obscure the field of view of an

        image recording device required under this section if the

        passenger train on which such device is installed is not in

        motion.

            ``(B) Resuming operation.--The crew of a passenger train on

        which an image recording device has been obscured pursuant to

        subparagraph (A) shall ensure that such image recording device

        is no longer obscured immediately after the employee has

        finished expressing breast milk and before resuming operation

        of the passenger train.''.

    SEC. 103. EFFECTIVE DATE.

    (a) Expanding Access.--The amendments made by section 102(a) shall take effect on the date of enactment of this Act.

    (b) Remedies and Clarification.--The amendments made by section 102(b) shall take effect on the date that is 120 days after the date of enactment of this Act.

    (c) Authorizing Employees to Temporarily Obscure the Field of View

of an Image Recording Device on a Locomotive or Rolling Stock While

Expressing Breast Milk.--The amendments made by section 102(c) shall

take effect on the date of enactment of this Act.

    (d) Application of Law to Employees of Rail Carriers.--

        (1) In general.--Section 18D of the Fair Labor Standards Act of

    1938 (as added by section 102(a)) shall not apply to employees who

    are members of a train crew involved in the movement of a

    locomotive or rolling stock or who are employees who maintain the

    right of way of an employer that is a rail carrier until the date

    that is 3 years after the date of enactment of this Act.

        (2) Definitions.--In this subsection:

            (A) Employee; employer.--The terms ``employee'' and ``employer'' have the meanings given such terms in section 3 of  the Fair Labor Standards Act of 1938 (29 U.S.C. 203).

            (B) Employees who maintains the right of way; rail carrier;

        train crew.--The terms ``employee who maintains the right of

        way'', ``rail carrier'', and ``train crew'' have the meanings

        given such terms in section 18D(e)(4) of the Fair Labor

        Standards Act of 1938, as added by section 102(a).

    (e) Application of Law to Employees of Motorcoach Services

Operators.--

        (1) In general.--Section 18D of the Fair Labor Standards Act of

    1938 (as added by section 102(a)) shall not apply to employees who

    are involved in the movement of a motorcoach of an employer that is

    a motorcoach services operator until the date that is 3 years after

    the date of enactment of this Act.

        (2) Definitions.--In this subsection:

            (A) Employee; employer.--The terms ``employee'' and ``employer'' have the meanings given such terms in section 3 of  the Fair Labor Standards Act of 1938 (29 U.S.C. 203).

            (B) Motorcoach; motorcoach services operator.--The terms         ``motorcoach'' and ``motorcoach services operator'' have the         meanings given such terms in section 18D(f)(4) of the Fair  Labor Standards Act of 1938, as added by section 102(a).

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.