WHAT EMPLOYERS MUST KNOW ABOUT THE PROVIDING URGENT MATERNAL PROTECTIONS (PUMP) FOR NURSING MOTHERS ACT

By Brad Ryder

Overview

The Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act” or “Act”) was signed into law on December 29, 2022.  Additional provisions of the PUMP Act addressing available remedies went into effect on April 28, 2023.  The PUMP Act is an amendment to the Fair Labor Standards Act (“FLSA”), which addresses minimum wages, overtime compensation, child labor laws, and equal pay for male and female employees.  The United States Department of Labor, Wage and Hour Division (“Wage and Hour”) is responsible for enforcing the Act.

Covered Employers

• Employers with gross revenue of at least $500,000.00 per year and who have two or more employees are covered under the PUMP Act.

NOTE:  An “employer” includes “any person acting directly or indirectly in the interest of an employer in relation to an employee.”  Therefore, supervisors and managers could, in certain instances, be held personally liable for a violation of the Act.

• Even if an employer is not covered under the PUMP Act, an employee may still be protected under the Act if she is involved in interstate commerce.

NOTE: Airlines are excluded from coverage under the PUMP Act in relation to employees who are crewmembers.

• Employers with less than 50 employees may not be required to comply with the PUMP Act, if doing so would result in an undue hardship.

NOTE:  Such a determination is to be based on the relative size of the employer, its financial resources, and the nature and structure of the employer’s business.

NOTE:  A similar test is applicable to railroads and motorcoach carriers, regardless of the number of employees.

Rights / Obligations Under the Act

• Employers must provide employees who are nursing reasonable break time to pump for one year after the child’s birth.
• A nursing employee must be provided a private place that is “shielded from view and free from intrusion from coworkers and the public.” A bathroom, even if private, is not a permissible location.
• The location provided for pumping must be appropriate for pumping milk and made available when needed by the pumping employee.
• The space provided must be functional and must contain a place for the nursing employee to sit and a flat surface, other than the floor, on which to place the pump.
• To ensure privacy, Wage and Hour suggests that the space provided should have a locking door or a sign that designates when the space is in use and off limits to others.
• The designated place for pumping should not be so far from an employee’s work area as to make it impractical for an employee to take breaks for pumping.
• The space for pumping should, but is not required to, also include access to electricity and have a nearby sink, so that the employee can clean up after pumping.
• An employee must have access to a place to safely store breast milk. Although an employer is not required to provide a refrigerator, a pumping employee must be able to bring a cooler to work to store the pumped milk.
• The frequency and duration of breaks will vary depending on factors relating to the nursing employee and the child.
• An employer is not required to compensate an employee while pumping, provided that the employee is completely relieved from duty during the break time.

NOTE:  If other employees are provided paid breaks, then an employee who uses such break time to pump must be compensated in the same way that other employees are compensated for break time.

• Employees who work remotely are eligible to take breaks for pumping on the same basis as other employees.
• While pumping, a remote employee must be free from observation by any employer-provided or required video system, to include computer cameras or security cameras.
• An employer cannot terminate or otherwise discriminate against an employee who has filed a complaint (to include making a complaint to Wage and Hour), has instituted any proceeding under the PUMP Act, or has testified or is about to testify in any such proceeding.
• Employers are is required to display an “Employee Rights” poster that summarizes the major provisions of the FLSA, to include employee’s rights under the PUMP Act. The Department of Labor’s current version of this poster can be accessed by clicking on this link:  https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/minwagep.pdf.

Relief and Remedies

• An employee who believes that her rights under the PUMP Act have been violated may either file a complaint with the Wage and Hour Division or file a private lawsuit.
• Before a private lawsuit can be filed, the employee must first notify the employer of its violation of the PUMP Act and provide the employer 10 days to comply with the Act.

NOTE: This requirement does not apply in relation to filing a complaint with the Wage and Hour Division or when the employee has been terminated and certain conditions are met.

• The remedies available to an employee under the PUMP Act are the same as those otherwise available under the FLSA. These include backpay, an equal amount in liquidated damages, reinstatement, attorney’s fees, and costs.

NOTE:  In a January 2023 Fact Sheet, the Wage and Hour Division takes the position that compensatory and punitive damages may also be available.

Additional Considerations

• The Act must be interpreted in relation to the rights afforded employees under other applicable federal laws, to include the Pregnant Workers Fairness Act, Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Equal Pay Act, and the Americans with Disabilities Act.
• The PUMP Act sets a minimum standard for compliance and does not override any state or local laws that might provide additional or greater rights or protections.

Conclusions / Recommendations

Employers must understand and fully comply with their responsibilities under the PUMP Act.  Thought and consideration should be given as to how a company will comply with its obligations under the Act prior to an employee requesting break time for pumping.  Because the PUMP Act was only recently enacted, it will likely take years for the courts to interpret the various provisions of the Act and provide guidance as to employers’ obligations.  Until then, it is best to err on the side of caution to minimize the likelihood of violating the Act.  The failure to do so could result in significant potential liability not only for the employer, but also for those supervisors and managers who are responsible for making employment-related decisions on its behalf.

If your business has questions about the Providing Urgent Maternal Protections for Nursing Mothers Act, the Pregnant Workers Fairness Act,  Pregnancy Discrimination Act, Equal Pay Act, the Family and Medical Leave Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other employment-related issues, feel free to contact me at (256) 534-3288 or brad@ryderlaw.com.

This information is not intended to provide legal advice, and no legal or business decision should be based on its content.  No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.  Read full disclaimer.