Curb Your Enthusiam About the New Federal Workplace Pumping Law

by Jake Aryeh Marcus Find Sustainable Mothering on Facebook and Jake on Twitter.

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.

Tags: , , , , , , , ,

You can leave a response, or trackback from your own site.

4 thoughts on “Curb Your Enthusiam About the New Federal Workplace Pumping Law”

  1. I just beive that most employers dont support their nursing mamas! Its my rite! I work as a CNA a few 2nd shifts a week after I had my oldest. I worked with all woman nurses. I had more trouble. She was 7 months old. I ended up giving up and pumping when i was home and not at work. and giving my mom formula to give her to eat while i was at work. when i had my 4 year old i was at the same place. and i got the same disrespect. i went back to work when she was 10 wks old. it isnt easy. dear employers dont you know i want the best for my family…why cant you respect that?

  2. I think that another really important issue is that even employers who want and/or are willing to allow mothers to pump at work don’t really understand what that will involve. I’m a high school teacher, and my school district knows that it needs to comply with Oregon law, but beyond that, it does want to help. I just don’t know if it really can. The district mandates that every school report what their designated pumping room is. Two years ago, when I was pumping, the room was a space with two doors that sat between two classrooms. Sometimes it was used as a space to work one-on-one with students, and it was also home to a refrigerator and microwave used mostly by staff, but also by some students. I’d often have to kick people out of the room, or wait for their food to finish cooking. I had to ensure that two doors were locked, but that didn’t always matter, as multiple teachers had keys to the space. There were signs on the door, but not every one noticed (there are signs and posters all over the place in a school that get ignored everyday.) Often, I’d leave the room to find another teacher patiently waiting to retrieve their food from the fridge, and feel bad. After all, they have the same pathetically short 30 minute lunch break that’s never actually 30 minutes long because something always comes up. Schools are not designed with privacy in mind. In fact, privacy is a bad thing in a school. Who knows what kids might do in a hidden corner.

    Besides having issues with the space, I had issues with my schedule. In a school, everything is timed. You may not just leave your job when you need to pump (or pee). We work with a block schedule, which means that there are Day 1’s and Day 2’s. On day one, I could space pumpings in a way that worked with what I needed. I could pump three times at appropriate intervals. On day two, my prep period was too close to the beginning of the day and my lunch. I could only pump twice. This inconsistency was troublesome in a few ways. On the one hand, I felt like it affected my supply, and I believe that it also contributed to the four breast infections that I had. A master schedule for a school is very challenging for principals to write, and requests don’t always work out, not to mention the fact that it needs to be done months in advance of the school year and is locked in once September comes. If I get a schedule that doesn’t work with my pumping needs, I’m just sort of stuck.

    My apologies for the rant, but my point is broader than my own personal experience. What my experience has taught me is that even employers with the best intentions may not be able to support mothers, and may not even know what that looks like. How many small businesses don’t have any private, locking room other than a bathroom? How many teachers are trying to pump during a timed and very public school day? What about a bus driver? What about a construction worker? Do we just tell women that certain jobs can’t accommodate breastfeeding mothers? That’s not right.

    I dread having to pump when I have another child.

  3. This is not at all a rant, Natalie. Laws need to require that pump rooms be taken into consideration when building in the first place. School administrations need to take breastfeeding into consideration when creating schedules. The paradigms need to shift.

    Many people have been critical of my take on the new federal law saying this is a “first step” or a “baby step.” What you have written is a perfect illustration of how many steps we really are away from truly accommodating breastfeeding employees. You should not have to fear how you will pump with your next child and women should not have to choose professions (or not breastfeed) because of their work sites.

  4. I am also a teacher and my school is also trying to help but the on;y time I can pump during the work day is during my 30 minute lunch. We need to urge the government to require workplaces to give EVERY mom the chance to pump. Even those that make a salary.

Leave a Reply

Your email address will not be published. Required fields are marked *