PUMP Act Violations Continue Two Years Later

In 2010, an amendment was introduced to the Fair Labor Standards Act (“FLSA”) that added provisions to require employers to provide reasonable break time and a clean, private place for nursing mothers to express milk for one year after their child’s birth (the “reasonable break requirement”).

On December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) was signed into law as part of the Consolidated Appropriate Act of 2023.  The PUMP Act incorporated the reasonable break requirement and expanded its protections to nearly 9 million more nursing employees across various industries, including agricultural workers, nurses, teachers, truck and taxi drivers, home care workers and managers.

The PUMP Act Closes Coverage Gaps

The PUMP Act entirely closed the coverage gap that previously left 25% of women of childbearing age without federal protections for their right to break time and a private space to pump breast milk during the workday. The enforcement rules of the PUMP Act were set to take effect three months after its adoption into law on April 28, 2023.

Importantly, the PUMP Act made it increasingly plausible for an employee to file a lawsuit against an employer that violates the FLSA. Prior to the PUMP Act, employees who suffered at the hands of their employer’s noncompliance with the reasonable break requirement were not able to seek a monetary remedy in court.

Another important aspect of the PUMP Act is that it clarifies that pumping time counts as time worked, particularly when calculating minimum wage and overtime if an employee is not completely relieved from their work duties during the pumping break.

Noncompliance with the PUMP Act Remains Common

Despite the PUMP Act’s expanded protections for nursing employees, most employers have failed to be in full PUMP Act compliance. Two years after the PUMP Act has been in effect, Reproductive and Maternal Health Compass found that only 46% of companies report full compliance with the PUMP Act. “Full compliance” requires the employer to have both a private lactation space and a written policy that allows for as many breaks as needed to express breast milk. Nearly 20% of employers offer no lactation accommodation support, and about 30% of companies provide a lactation space without a formal policy to guide managers or employees on how to use it.

Examples of PUMP Act Violations in the Workplace

These PUMP Act noncompliance issues have affected employees across the nation. Since 2022, there has been a bevy of lawsuits against noncompliant employers, including class actions, against major fast-food chains, retailers, and manufacturers, among others, alleging a range of violations of the PUMP Act from unsanitary conditions to insufficient break time for pumping.

In Faber et al v. McDonald’s U.S.A., LLC, employees filed a collective action against their employer, alleging McDonald’s failed to provide sanitary spaces for employees to pump. In the lawsuit, the employees assert McDonald’s had an “affirmative duty…to provide a clean, secure space” but instead placed the employees “into a Hobson’s choice between using demeaning, unsanitary space to express milk, abandoning pumping at work all together, or quitting their jobs.”  One of the named plaintiffs alleged she had to pump in the stockroom or in a bathroom, while another plaintiff alleged she had to pump in a back office that had no door.  Both alleged they were provided with only one 30-minute period to pump and otherwise had to do so ad hoc, sometimes unable to pump at all due to inadequate staffing in the workplace.

Legal Rights and Remedies for PUMP Act Violations

Similarly, in Masseur v. United States Postal Service, employees alleged they were forced to pump milk in their cramped and windowless mail trucks or break rooms, which were neither sanitary nor private.

According to the FSLA, employees whose rights have been violated under the PUMP Act may be entitled to reinstatement, promotion, and the payment of lost wages and equal amount as liquidated damages, compensatory damages, and make-whole relief, such as economic losses that resulted from violations, and punitive damages.

Employees have multiple options to seek remedies under the PUMP Act. Employees can file a complaint with the U.S. Department of Labor (“DOL”) Wage and Hour Division or choose to file a lawsuit against their employer. If an employer violates the reasonable break requirement, has indicated they have no intention of providing private space for pumping, or if an employee has been retaliated against for requesting break time or space, employees may consider filing a complaint with the DOL or pursuing legal action.

Legal Support for Employees Facing PUMP Act Violations

Labor and employment attorneys can help individuals pursue federal or state civil action in accordance with laws such as the PUMP Act. Consider speaking to an employment attorney to explore your rights and option if your workplace conditions and/or treatment may be in violation of workplace lactation rights and partaking in breastfeeding discrimination. Labor and employment attorneys can help individuals file a complaint with the DOL as well as represent individuals in front of employment agencies like the DOL. Further, labor and employment attorney assist individuals initiate and see through any legal proceedings.

The legal team at Miller Shah LLP has extensive experience representing labor and employment matters, including discrimination and harassment as set forth by laws like the PUMP Act, and more. If you have any questions regarding this subject or this post, please fill out a form or call us toll-free at (866) 540-5505.