U.S. Department of Labor Issues Fact Sheet on New Workplace Pumping Law

After much speculation on the impact of a new federal law requiring certain employers to give unpaid pump breaks to certain employees (and my advice to Curb Your Enthusiasm), the U.S. Department of Labor has issued a Fact Sheet.

Fact Sheet #73: Break Time for Nursing Mothers under the FLSA restates the requirements of the amendment to the Fair Labor Standards Act which went into effect this past March and which requires unpaid breaks for certain employees to pump breast milk and private space in which to pump.

While the text of the Fact Sheet provides little clarification of the new law – the penalty to employers for violating the law is still unclear – and is not an official position statement or regulation, it may indicate the Department of Labor is better prepared to accept complaints than it was in March.

Employees seeking more information should While there have been no public reports of employees using this new law, I have also seen no reports of the DOL rejecting complaints. Any nursing mother having trouble with employer compliance with the federal workplace pumping law should feel free to write about it here.

14 Comments

  1. Tweets that mention U.S. Department of Labor Issues Fact Sheet on New Workplace Pumping Law | Sustainable Mothering — Topsy.com July 23, 2010[…] This post was mentioned on Twitter by Jake Aryeh Marcus, Scotti Weintraub. Scotti Weintraub said: RT @JakeAryehMarcus: New blog post: U.S. Department of Labor Issues Fact Sheet on New Workplace Pumping Law http://bit.ly/9BdGnt […]reply
  2. Steve Cipolla July 24, 2010 Jake’s early, sobering analysis of this law was spot-on. The “fact” sheet only confirms what we know from Jake’s piece, (see link above) “Curb Your Enthusiasm About the New Federal Workplace Pumping Law,” which I strongly urge everyone to re-read: to wit, that statute, regardless of what it may or may not provide in the way of actual enforcement mechanisms for working Moms who want to pump, does NOT provide anything to women who are exempt from the overtime provisions of the FSLA. E.g., Congress deliberately put this provision in a Depression-era statute that only applies to hourly employees, so the workplace pumping provision within it only applies to women who work for an hourly wage, and are entitled to overtime, work for employers with over 50 employees (hmm, does that include full time independent contractors?) and for whom compliance would not constitute an undue hardship.There is nothing in the fact sheet or the link to which the fact sheet refers you for “more information” that illuminates any of the critical questions posed about remedies and enforcement in Jake’s “Curb Your Enthusiasm About the New Federal Workplace Pumping Law.”There are significant legal questions about how to enforce this law against non-compliant employers, whether a women has to suffer a termination for insisting to pump in order to bring suit for reinstatement? What is the plan at DOL for enforcement? Is this fact sheet simply a sop to satisfy people who, undoubtedly as a result of commentary like Jake’s, were raising questions with their local Congressperson. Fact sheets are fine, but they are not law, regulation, or even guidance.Jake was right about this statute when it was first publicized, because over the years she has developed not only a remarkable expertise in state laws regarding breastfeeding and workplace pumping, but also because she has a keen and skeptical approach to any law or bill that appears to be too good to be true. The language of this bill was designed to fool people. It is any lawyer’s most valuable skill in interpreting legislation to be able to identify what is worthless in new legislation.At the end of “To Kill a Mockingbird” the nice lady, Maudy, across the street from Atticus Finch’s house tells Jem and Scout that their father is one of those people who do our unpleasant tasks for us? (If you don’t know the movie, go rent it now and watch it with the kids!) And, you know the saying that there are two things you don’t want to watch being made, sausage and legislation? Well, Jake is one of those people we rely upon to break the shrinkwrap and dissect the legislative sausage for us. It is always disgusting, and frequently illuminating. I am a practicing litigation attorney, and rely on other lawyers to do this for me. It’s that onerous!This not a half full situation, as someone said in a prior post. For Moms who are covered by the statute,the federal glass currently is bone dry. Seek state remedies, and don’t let any state lawmaker tell you that there is a federal law that covers the issue. The federal law is crap. And, if you read Jake’s posts, the fact sheet and the one page of law that we are talking about, the conclusion that it is crap is obvious.Whether the DOL finds a Constitutional way to put teeth in it, remains to be seen, but the fact sheet does not provide a basis for feeling optimistic about future vigorous enforcement, if such a thing is even permissible under this provision of the FSLA at all. reply
  3. Disgruntled Employee September 15, 2010 I am a nursing mother just returned from maternity leave in August, and I work for one of those companies for which the law seems to be designed, although frankly, it doesn’t seem to be having any effect.In the weeks before my return to work (as I was also trying to make a transfer to another store), I was in contact with the manager trying to iron out paperwork details so everything would run smoothly. Eventually, we came around to the fact that I’m breastfeeding my baby, so I’ll need a place to pump while I’m there, and I got the standard reply, “I’m sure we can figure something out”, and was told that there’s always the bathroom.My availability to work was also at issue. I told the manager in the beginning that my availability is open, which is true, but after thinking about it, I should be more careful as not to be needed on the floor at a time when I needed to pump. When I brought this up, I was told that I needed to give a solid availability, because of problems in the past with transfer employees.At that I decided to call the corporate hotline to see if they had any guidance in this situation. It seemed to me that if there are all these policies governing even the tiniest detail of my work on the clock, there should be SOMETHING for this. They took down all the information about me and my case, and got back to me in a few days. I told them about the situation, that I didn’t want to be in the bathroom pumping, and let them know that I was even willing to transfer to a different store in the area, perhaps one that already had a setup for someone else who needed to express milk. After some hemming and hawing, even going so far as to ask me what kind of pump I had to see if maybe I could go to my car with some visors, they directed me to the district manager in the area.I ended up at the store I had picked up a couple of shifts for before I left on my maternity leave, and she offered to let me pump behind the managers desk with a shawl, since it was still out in the open to coworkers. They’re pretty nice about the whole thing, and no one makes a fuss, but it still sucks because I have to cover up, and really I need to see what I’m doing to operate the pump correctly. I’m also still having issues with breaks, because although the general manager knows what the deal is, I don’t get the impression that any of the shift managers do, so I’ve been scheduled for six hours, with only the standard two ten minute breaks, even though it takes me at least 15 – 20 minutes to express milk. And getting these shifts to do anything that doesn’t follow the general policy to the letter is like pulling teeth. Even my first shift back, which was also a six hour shift that I was covering for someone else, I felt like I had to pull teeth. In the end, I did get a lunch break, but I think it was only because the person I was covering for hadn’t taken it before they left.This whole experience has left me wondering if they genuinely don’t know the law, or are ignoring it willfully, playing upon my ignorance. Of course, it is my responsibility to know the law, but it doesn’t seem fair that they make recommendations at the corporate level that totally go against it. And what about the rest of the women returning from maternity leave? What happened to them?Perhaps what’s most upsetting about this whole thing is that I feel like I’m in a position where I can’t talk to anyone about it. I’m even nervous posting this comment.
    I don’t even feel comfortable using my real name.reply
    • Jake
      Twitter: Jakearyehmarcus
      replied: September 15, 2010 Have you contacted the Department of Labor? reply
      • Disgruntled Employeereplied: September 15, 2010 I haven’t yet… mostly because I’m concerned about retribution, and because my boss is out of town (it doesn’t seem fair to blind side her), but I think I’ll have to do that tomorrow before I lose my nerve.I’ll post something with what the DOL has to say once I do. reply
        • Jake
          Twitter: Jakearyehmarcus
          replied: September 15, 2010 You can ask questions of the DOL without your employer knowing. And if you do file a claim, you would be protected by retaliatory discharge law. No guarantee you won’t suffer but I haven’t heard form anyone who took her workplace pumping problem to the DOL. I think people really need to know how the DOL is going to handle these claims.Thanks so much for sharing your story. You should not be forced to pump either in a bathroom or in front of customers. It is *private* space you have been promised.reply
          • Disgruntled Employeereplied: September 16, 2010 I called the information helpline this morning and they will refer me to someone to file the complaint. They should be getting back to me sometime in the near (ha!) future. More to come.
    • Maria replied: December 22, 2012 i just got fired as a result of a complaint i made with the EEOC office about that they ignored me when i just went back to work after 1 month and half of maternity leave they denied me a refrigerator for me and a co-worker that just came back in the same situation and i asked a vendor to lend us one and i was accused of committing bribery and under that excuse i was fired…of course the refrigerator was just an excuse because i have another co-worker that is not a breastfeeding mom that did the same and had no problems with it …reply
      • Jake
        Twitter: Jakearyehmarcus
        replied:December 22, 2012 Retaliatory discharge is an additional EEOC claim. Be sure to to file there.reply
  4. Disgruntled Employee September 21, 2010 The DOL called tonight.Surprisingly, I’m the first person to call in with this issue. Is that a good or a bad thing?I also called corporate one last time, to file a request for information about their policy on nursing mothers. When they call back, I’m going to inform them (assuming they don’t know [whatever]) about the FLSA ammendment, tell my story, and go from there. If all goes well, perhaps we’ll get some good policy on this.If it doesn’t, I file the complaint, and see what happens.
    More to come. reply
    • Jake
      Twitter: Jakearyehmarcus
      replied: September 21, 2010 I am not at all surprised because I am the only person telling women to call the DOL. Every breastfeeding advocacy group making statements about this has been telling women to wait for further guidance the DOL has no obligation to give. The only way we will know how the DOL plans to handle complaints IS FOR A WOMAN TO FILE A COMPLAINT.Thank you so much for doing this! You could blaze the way for women all over the country.Feel free to post me directly (off-blog). And thanks for writing this here. reply
  5. April October 22, 2012 Thank you for having such sites to help mothers like me understand what they can expect when it comes to their employers not willing to comply with the laws pertaining to pumping in the work place. I am currently facing a similar situation with my employer, which happens to be a government agency! I was not given a private place to pump and was told to find one on my own. When I did, it wasn’t very sanitary and caused problems because I had to use a sink to rinse out my equipment in a separate area. When asked for assistance again from the employer, I was given the run around and constantly harassed. I was given the option to use a bathroom, as they said they have now provided me with an area for me to “handle” my business. When told numerous of times that a bathroom was not suitable by federal law, the issue was dismissed with a threat of disciplinary action against me. As a result of the deliberate indifference shown by my employer and all those who hold a high ranking position within this agency, my infant child had to suffer due to the diminished amount of milk being produced. It was strongly suggested by my infant child’s pediatrician that I use synthetic formula because of the significant amount of weight loss. Not only was I heartbroken, but I was lost. I have NEVER had to use a synthetic formula to nourish any of my children. As of now, the employers has yet to implement a policy of any kind, or establish any kind of provisions for pumping mothers in the work place. I have since however, sought the advise with a legal council. I hope my situation will prevail in my favor and set a precedence for all future mothers who choose to nurse their child, but at the same time have to return to the work force. My legal council is looking into filing a complaint with DOL, as well as bringing forth a suit against my employer. I will keep you posted as we move along with any outcomes. I feel that this will help other women as well, to come forward about the issues being faced in the work place with the choice of pumping and what they can do about it. Thanks for the encouragement!reply
    • Mariareplied: December 22, 2012 totally agree with you i thought i was the only one facing employer discrimination problems …where do you live April ? reply
  6. Department Of Labor Issues Fact Sheet On New Pumping Law « Mommy News and Views Blog July 9, 2013 […] this means. While many other blogs have already posted information about this which can be seen here and here (amongst others), we thought it was worthwhile to bring it up again and make sure that all […]