Curb Your Enthusiasm About the New Federal Workplace Pumping Law

The workplace pumping provision of the federal health care bill sounds like great news for women who pump breast milk in the workplace. Who could complain about a federal requirement that all employers give reasonable unpaid breaks to employees who need to pump for their nursing infants? On closer examination of what the law actually does, I think many of you will complain.

On its face, the new law, Section 207 (r) of the Fair Labor Standards Act (FLSA), requires unpaid break time for employees to pump breast milk for a child under age one. In a country that truly supports breastfeeding mothers and their children, women should be paid for pumps breaks. Children should breastfeed until at least a year so mothers can pump for as long as their children need them to.  The new federal law has a hardship exception for employers of fewer than 50 employees. It is still unclear how many employers will evade the new requirements under an as yet undefined hardship exception.

But the problem with the new federal workplace pumping law is much bigger than all that. The problem is that there may be no way for most women to use it at all.

Go back to the FLSA. To be covered by new Section 207 (r) you have to be an employee to whom the FLSA applies in the first place.

Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week.

Basically that means that if you get a salary, you are probably not covered by the FLSA and not entitled to whatever new federal workplace pumping benefits there are. Well then, the exempt workers should at least be happy for the nonexempt – the hourly workers, those women covered by Section 207 (r), right? Well, hang on.

The first thing I researched about the new federal workplace pumping law was whether there was a penalty for employers that don’t comply. Finding the answer is much harder than it would appear. Go back and read the text of the bill. No, you didn’t miss it. There is nothing about enforcement, penalties or remedies.

But you can’t stop there because new subsection (r) is an amendment to Section 207 of the Fair Labor Standards Act of 1938.  (I know this is confusing but ride along with me.) So you need to go to the FLSA and read Section 207.  See if Section 207 has some enforcement, penalties or remedies.  Hmm.  Nope.  So then you read the entire FLSA.  (Actually, you don’t need to unless you want to. I reread it for the first time since law school.)

There are lawyers who do exclusively FLSA work but, fair warning, I am not one of them. You can find the penalties though. Section 216, which is long and convoluted. From what I can tell, penalties are available if the employer’s violation resulted in lost wages or unpaid overtime pay. But Section 207 (r) specifies that pump breaks are to be unpaid.  So it appears that an employee would have to get fired to have lost wages. And women don’t want to get fired over needing to use a breast pump at work.

In the real world, if an employee can’t get pump breaks or a pump space, she needs an order, either from a court or a government agency, requiring the employer obey the law. What she needs is an injunction. But for injunctive relief under the FLSA, you need to look at Section 217. Did you read it? No mention of it applying to Section 207.

So what will happen to an employer who refuses to comply with the new federal workplace pumping mandate? So far, I haven’t been able to find a labor lawyer who can tell me. And that makes me wonder whether the answer is “nothing at all.”

The Department of Labor, Wage and Hour Division, has the ability to issue “Administrator Interpretations” which clarify what the FLSA means. However it is unknown when any will be issued concerning employer obligations under Section 207 (r). Unless there are complaints filed, Wage and Hour will have no reason to issue any “Interpretations.”

Now, some employers are going to provide break time and pump space to all employees who need them. Some employers already do. As I wrote in Pumping 9-5 in Mothering back in 2008, 26% of all U.S. employers provided some sort of lactation support in 2007. But the study from which that figure comes does not specify how much lactation support. It is unlikely that a quarter of all U.S. employers give both unpaid break time and a place to pump that meets the requirements of the new FLSA Section 207 (r):  “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.”

Let’s also remember that only thirteen states, plus Puerto Pico and the District of Columbia,  have laws that require some employers to give unpaid breaks and a place to pump to their employees. Of those thirteen, only five states (California, Colorado, Hawaii, Oregon, and Vermont), as well as Puerto Rico and the District of Columbia, have laws that penalize employers for failing to abide by workplace pumping laws.

Let’s take a look at what large corporate law firms appear to be telling their large corporate clients. Some corporate law firms appear to be advising large companies to comply at least minimally. A few point out that this amendment may contradict existing FLSA regulations which require that employers pay employees for breaks up to 20 minutes.

So what should you do if you are an hourly worker whose employer is not complying with FLSA Section 207 (r)? Contact the U.S. Department of Labor, Wage and Hour Division at 1-866-487-9243. Look around the Wage and Hour website. Have a confidential conversation at the toll free number. And then, if you would like to share your story with others, e-mail me. I am currently collecting information from workers whose employers refuse to comply with FLSA Section 207 (r). Until we know whether this new federal law can actually help women pump in the workplace, I will be writing the stories of women whose employers fail to comply with it.

17 comments to Curb Your Enthusiasm About the New Federal Workplace Pumping Law

Kate Sophia May 10th, 2010 at 8:17 pm· Reply

I use my already granted breaks to pump. The way my hours and daycare hours work, that’s the only way to make it happen (grumble grumble). One day I realized that I don’t have to “clock out” to go to the bathroom…so why do I have to to pump? If I don’t pump, I’ll get sick, so at the minimum this is a health issue. If I could only figure out how to pump while using the bathroom, I might actually get a real break at work!

Tweets that mention Curb Your Enthusiasm About the New Federal Workplace Pumping Law | Sustainable Mothering — Topsy.com

May 10th, 2010 at 8:20 pm · Reply […]

This post was mentioned on Twitter by Jake Aryeh Marcus, Arwyn. Arwyn said: Must read. #breastfeeding #fem2 RT @JakeAryehMarcus: Curb Your Enthusiasm About the New Federal Workplace Pumping Law http://bit.ly/bl2NXr […]

Sara Dodder Furr

May 10th, 2010 at 9:05 pm · Reply

Thank you for putting this in a language I can understand , Jake. I will be keeping this for reference to give to the women I support as an IBCLC before they return to work. I am guessing only about 40% of the women I see are in salaried positions, probably even fewer than that. I do ask where women work as I have time to talk with them as their babies are feeding. It gives me a chance to discuss their plans for returning to work and whether or not they have a place to pump their milk. This is a great resource!

Jake
Twitter: jakearyehmarcus
May 10th, 2010 at 9:14 pm · Reply

So glad this makes sense. Took me all day editing to make it comprehensible. Every time I try to explain this, I can feel the listener nodding off. ;)

Knitted in the Womb

May 10th, 2010 at 11:28 pm · Reply

I’m going to make a jump here and suggest that in general, “salaried” employees already have an easier time getting access to a place to pump than “hourly” employees. They often have more freedom to manage their own time, and have more access to “private places.”For myself, I “worked and pumped” for 4 of my children. I was hourly when pumping for my 1st, then salaried after that. I worked for a Fortune 500 company, and moved around a bit to different work sites between children. I had a designated “special needs” room that I could pump in at 2 facilities, while I had a private office that I could close the door for pumping at a 3rd. When I traveled to conferences on business, I did not typically have a problem finding a place to pump–just one hotel staff person at a day conference suggested that I pump in the restroom. I rejected that suggestion, and was soon provided with a room free of charge.I later worked for another company–a newspaper. At this company I did not need to pump, but I did note that a special needs room with a fridge was provided for the salaried staff. To my knowledge it was NEVER used during the 1.5 years I worked for the company.Saddly, I was continually discouraged by the way the manufacturing employees were treated as “less than” the white collar employees at this company. There was a significant proportion of the employee population at this company in the same building that worked in hourly manufacturing positions, and they did not have access to that special needs room. For that matter, when I left the company, I (as the Health & Safety Manager) was in the middle of trying to convince the Facilities Manager that it was NOT appropriate to shut off the hot water to the women’s restroom in the manufacturing area rather than repair a leaky faucet. Just in case any reader doesn’t know this…OSHA *requires* employers to provide at least *warm* water for hand washing in restrooms.

Jake
Twitter: jakearyehmarcus
May 11th, 2010 at 11:59 am · Reply

I agree that workers with their own offices and more control over their breaks often have what appears to be an easier time pumping at work. However I frequently get calls from salaried employees whose lack of scheduled break time creates conflicts like meetings that run through pump time and co-workers banging on their office doors while they are pumping. The unused pump room you mentioned is also an all too common phenomenon. Co-workers and managers need training on being sensitive to an employee’s pump schedule.Before I had children, I supervised a woman who pumped at work. She had a cubicle so asked if she could use my office to pump. I said yes, of course, but was so clueless about her pump schedule that I generally forgot. I didn’t realize she needed my office until I saw her put up a shawl to block the view of her pumping in her cubicle. :( So even employers who mean well can be insensitive if they have never experienced breastfeeding or pumping.

Marion Rice

May 10th, 2010 at 11:30 pm · Reply

There is a GREAT FAQ on this law here:
http://www.usbreastfeeding.org/Workplace/WorkplaceSupport/WorkplaceSupportinHealthCareReform/tabid/175/Default.aspx and Nursing Mothers Counsel of Oregon has a workplace lactation support service where we work with companies and provide technical support to institute comprehensive lactation support services and employee policies in the workplace and help employees successfully transition back to work and maintain breast feeding.you can get in touch with us at http://www.nursingmotherscounsel.org

Jake
Twitter: jakearyehmarcus
May 11th, 2010 at 11:49 am · Reply @Marion, I’m afraid I have to disagree with you about the merits of the USBC FAQ. There are critical differences between the Oregon workplace pumping law and this new federal one. The USBC FAQ points to the process by which the Oregon Department of Labor is able to promulgate necessary regulation as an example of how the federal system will or may work. However, the Oregon statute specifically authorizes the Oregon Department of Labor to create this regulation – something Senator Merkley did NOT do in the federal legislation. Using Oregon as an example of how the federal law will work is misleading and, in my opinion, irresponsible.Hopefully your link to the resources in Oregon can be helpful to both employers and employees in Oregon, most of whom have access to the Oregon state workplace pumping law and do not need to rely on the federal law this blog post is about.

Caroline Allan

May 11th, 2010 at 6:56 am · Reply

Ditto Sara – thanks Jake

Heather BurrisMay 11th, 2010 at 7:15 am · Reply

It is a real shame that the Labor board hasn’t issued some kind of interpretations yet. Who even knows (outside of people who’ve actually pumped) what a “reasonable break time” means? I still think this was a good piece of legislation if only that some people will follow it just to avoid issues. Of course, there will be people who try to get out of it, or ignore it all together…I still think this will help a lot of moms, if only that they have something to reference and point to when they talk to their employers about what they’ll need when they come back to work…We still have a long way to go, but maybe this was a good baby step?Keeping my fingers crossed…

AhmieMay 11th, 2010 at 10:15 am · Reply

bookmarked, and will be sharing with my (VERY pro-breastfeeding) family doctor to try to drum up more reporting of non-compliance (as well as get women thinking about the issue BEFORE their babies are born).

Marion

May 11th, 2010 at 12:26 pm · Reply

Jake, the word is still out about what the penalty might be for federal non-compliance. The ideal is to work with employers to get them to comply in a timely way so an employee with a complaint does not stop nursing or pumping. The real opportunity is to help companies do better once they know better in terms of understanding, supporting and providing a comprehensive workplace lactation program that is good for employees and good for business. We know we can do both. What kind of a society do we want to be, one that supports healthy workplace culture or one that makes allowances for practices in the workplace that are detrimental to employee health and well being?
Providing comprehensive workplace lactation support to working families is an expression of a companies values and their commitment to a healthy work environment.

Jake
Twitter: jakearyehmarcus
May 11th, 2010 at 12:38 pm · Reply

I agree the ideal would be employers supporting employees. However, this blog post is about what the new federal law accomplishes.I think it is not helpful to workers to imply that we are merely waiting for clarification from the Department of Labor. Women have been waiting long enough and should not be misled about what it is they are waiting for. It is not clear “the word is still out” about penalties. It is possible we know as much as we ever will. It is possible there are no penalties and never will be.

Marion

May 11th, 2010 at 12:52 pm · Reply

I see the glass as half full Jake. We are moving in the right direction. The question in Oregon is does the Rest Breaks For Breast Milk Expression law make a difference to insuring families have accommodation so they can provide breast milk for their child. After 2 years we do not have a complaint to test the law. But I can tell you from experience in the field that positive changes are happening in the workplace to make sure a complaint is not necessary to achieve this workplace right for employees. We have better communication between employees and employers. We do have stressful situations where education is needed. We have MUCH more work to do here and we do provide important knowledge and technical support to employers to begin to understand what they don’t know particularly about risk avoidance and remedy before a problem arises. The existence of the law is helping and I am not sure the threat of the penalty is REALLY what is driving the change.
Marion´s last blog ..Fundraising My ComLuv Profile

Jake
Twitter: jakearyehmarcus
May 11th, 2010 at 3:16 pm · Reply

Sounds like the glass really is half-full in Oregon, Marion. I am just not convinced the federal law fills the glass much at all.It is very interesting to hear what is happening in Oregon. I completely agree with you that a law alone is not enough and that breastfeeding advocates must be prepared to offer resources to employers as well as employees. Many employers do not want to discuss breasts with their employees and have a justified fear of raising such issues. Employers are unsure of where the lines are with regard to sex discrimination – as are lawyers and courts for that matter. Some employers need these laws as permission rather than as punishment.Improvement in workplace support for breastfeeding absolutely does need to be a collaboration among public and private sector, law and cultural change. Law alone will not change everything and cultural shift still leaves women who need the ability to use law to protect their rights.Thanks for all you are doing in Oregon. :)

Marion Rice

May 11th, 2010 at 4:25 pm · Reply Yes! What happened in Oregon is better than what seems to be the case nationally. We have much work to do in Oregon still! At least we have opened the door to a national conversation. Thank you for talking about the realities of the national law. There is SO much work to do and absolutely increasing capacity to support workplace lactation was the intent of that legislation. The reality as you point out appears to be different. Thanks for this blog post.. Now how can we work together to get where we need to be and make sure the law meshes with what was intended.

Sunday Surf » The Road Less Traveled To Parenthood » Baby Dust Diaries

May 19th, 2010 at 10:24 am · Reply […] Curb Your Enthusiasm About the New Federal Workplace Pumping Law at Sustainable Mothering – Must read about the Health Care Bill’s pumping at work provision. […]