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At the end of April, 2023, the federal Providing Urgent Maternal Protections for Nursing Mothers Act, or PUMP Act, went into full effect, giving more workers the right to break time for lactation and a private space to pump, and adding “teeth” to a prior federal lactation law by providing legal recourse for employees denied these accommodations.
For our California employers, California has been ahead of the curve with regard to required lactation accommodations by employers for some time now, under Labor Code Section 1030. Notably, the PUMP Act explains that where state laws offer more stringent employee lactation protections (as in California), those state laws will govern.
Who is covered by the PUMP Act: All employers covered by the FLSA have to comply with the PUMP Act. Employers with fewer than 50 employees who can demonstrate that compliance would impose an undue hardship might be exempt, but proving “undue hardship” here would likely be very difficult. The PUMP Act expands a prior federal lactation law to now cover salaried employees, and some hourly workers who were initially excluded, such as farmworkers. However, gig workers, contract workers, airline pilots and flight attendants are not covered by the PUMP Act, and various exceptions have been made for the railway and motorcoach industry.
Who is covered in California: Under California’s Labor Code Section 1030, every employer in California is covered. Employers with less than 50 employees may be exempt from the law’s requirements if they can show undue hardship (tough to do), although they would still need to make reasonable efforts to secure a space that is not a bathroom; and multiemployer or multitenant worksites and agricultural employers are subject to different requirements.
Break Time for Lactation under the PUMP Act: Under the PUMP Act, employers are required to provide a reasonable amount of break time as frequently as needed by the nursing mother, for one year following the birth of the employee’s child. An employer may not deny a covered employee a needed break to pump. The break time for lactation does not have to be paid, but if employers do provide compensated breaks to other employees, then an employee who expresses milk during a break must be compensated in the same way.
Additionally, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies. This means that if an employee is performing any work while pumping, she must be compensated for that time. Employees who telework are also eligible to take pump breaks under the FLSA on the same basis as other employees. Exempt employees should be paid their full salary even if the employee takes pump breaks.
Break Time for Lactation in California: While the PUMP Act limits the accommodation requirement to 1 year, California law extends these protections to any employee for as long as the employee is nursing her child. In California, the break time shall, if possible, run concurrently with any break time already provided to the employee. Just like under federal law, if it does not run concurrently, the break time for lactation does not need to be paid.
Private Lactation Space under the PUMP Act: An employer must provide lactating employees with a space to express milk. An employer may create or convert a temporary space for expressing milk, or make a space available when needed, by the nursing employee. The space must be shielded from view, and free from any intrusion from co-workers and the public, for example, employers should provide a sign for when the space is in use or provide a lock for the door. The location provided must be functional as a space for expressing breast milk, contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump. Employees must be able to safely store milk while at work. If the space is not dedicated to the nursing employees’ use, it must be available when the employee needs it in order to meet the statutory requirement. The space provided for employees to express breast milk cannot be a bathroom. Workers who telework must also be free from observation by any employer-provided or required video system, including computer camera, security camera, or web conferencing platform.
Private Area for Lactation under California law: California law additionally provides that the location provided must be in close proximity to the employee’s work area; must be safe, clean, and free from hazardous materials; must contain a surface to place a breast pump and personal items; and must contain a place to sit and have access to electricity or alternative devices, including but not limited to, extension cords or charging stations needed to operate an electric or battery-powered breast pump. Access to a sink with running water and a refrigerator or cooler suitable for storing milk, in close proximity to the employee’s workspace, must also be provided by the employer.
Consequences for Failure to Comply under the PUMP Act: Beginning April 28, 2023, an employer who violates an employee’s right to reasonable break time and space to pump breast milk will be liable for legal or equitable remedies under the FLSA, which may include employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate. An employee may file a complaint with the Wage and Hour Division or may file a private cause of action seeking appropriate remedies to enforce the reasonable break time requirement.
Employees who allege a violation of the private lactation space requirement must first notify their employer of noncompliance ten (10) days before filing an action to provide employers with an opportunity to cure.
Consequences for Failure to Comply under the California Labor Code: A California employee who is denied a break or adequate space to express milk can file a wage claim under Labor Code section 226.7 and recover one hour of pay for each violation. Additionally, an employee may report a violation of the lactation accommodations laws with the Labor Commissioner’s Bureau of Field Enforcement (BOFE), and after an inspection or investigation, BOFE may issue a citation for one hundred dollars ($100) for each day an employee is denied reasonable break time or adequate space to express milk. Employees can also file retaliation claims pursuant to Labor Code Section 98.7 if they feel they have been retaliated against for either asserting or attempting to assert a right to lactation accommodation.
We recommend that you review your policies to make sure that employees are provided with the appropriate time and space needed for lactation under the laws. Feel free to reach out to discuss options with regard to private lactation spaces. The PUMP Act also requires that the pump at work requirements be posted - you can find an updated FLSA poster here. We also recommend referring to our prior Compliance Matter "Time to Update the Workplace Posters" for further guidance on workplace postings.
As always, if you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or visit us online at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Stephanie B. Kantor
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