Thursday, May 25, 2023: USDOL WHD Announced First PUMP Act Enforcement Action
With All Remedy Provisions Now in Effect, Agency Jumped Right on Enforcement
In its first public announcement of an enforcement action under the “Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act” (“PUMP Act”), the U.S. Department of Labor’s Wage and Hour Division (“WHD”) concluded that a corporate-owned location of Whataburger Restaurant LLC failed to provide reasonable break time for an employee to express breast milk. Moreover, WHD investigators determined that, when the employee left the premises of the Lubbock, Texas restaurant to express milk, the employer terminated her. To resolve these allegations, the San Antonio-based franchisor signed an “Enhanced Compliance Agreement” stating it will provide FLSA training to all managers in the future. The employer also agreed to pay $900 in back wages and $900 in liquidated damages.
How Did We Get Here?
As we reported in early January, the PUMP Act amended the Fair Labor Standards Act (“FLSA”) to require employers to provide breastfeeding accommodations in the workplace. Specifically, it requires a private location other than a bathroom and the necessary, reasonable break time for one year following the birth of a child. It expands on a 2010 amendment to the FLSA, which requires employers to provide these accommodations to non-exempt nursing employees. The new law expanded these rights to salaried employees. The Act contains several exemptions, including those for employers with fewer than 50 employees if compliance would impose an undue hardship, and specific exemptions for crewmembers of air carriers, train crews of rail carriers, and certain motorcoach services. Most of the provisions of the PUMP Act took effect on its enactment date. However, certain remedy provisions did not take effect until April 27, 2023. Thus, the WHD wasted little time in jumping right on enforcement of this new statute.
We reported last week that the WHD recently issued a field guidance explaining the new employer obligations under the Act. In addition, WHD also has a PUMP Act landing webpage with an updated FLSA poster (April 2023), a “Fact Sheet,” FAQ, and other resources.
Note Related Law Taking Effect on June 27
Employers should note that the PUMP Act is not to be confused with the “Pregnant Workers Fairness Act” (“PWFA”). Although both statutes were enacted on December 29, 2022, as part of the bipartisan FY 2023 Budget legislation (H.R. 2617), the PWFA does not go into effect until June 27, 2023. Congress designated the U.S. Equal Employment Opportunity Commission (“EEOC”) as the enforcement agency for the PWFA. In April, EEOC Vice Chair Jocelyn Samuels and Commissioner Keith Sonderling told attendees at DEAMcon23 in Chicago that the Commission is currently working on proposed regulations to implement the PWFA.
The EEOC will start accepting charges under the PWFA on its effective date next month. For the PWFA to apply, the situation complained about in the charge must have happened on June 27, 2023, or later, the Commission states on its PWFA landing webpage. A pregnant worker who needs an accommodation before June 27th may, however, have a right to receive an accommodation under another federal or state law, the EEOC cautioned.