Monday, September 18, 2023: Second USDOL WHD PUMP Act Enforcement Action Assessed Penalties Against Employer for Alleged Failure to Provide Pumping Privacy
The U.S. Department of Labor’s Wage and Hour Division (“WHD”) continues to actively enforce the “Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act” (“PUMP Act”), as indicated by the agency’s announcement that it had assessed penalties against a Florida Palm Coast resort and spa for allegedly failing to provide a designated private place for a nursing mother to pump breast milk. According to the WHD:
“The agency learned that when an employee at the Palm Coast resort asked for a private place to pump breast milk, supervisors took nearly four months to identify a space, eventually offering a manager’s office. The office lacked privacy, as the employee learned when another worker entered the room while the mother was attempting to pump milk. In another incident, the employer submitted a written counseling to the employee for leaving workplace property without permission after the worker advised that she needed to leave to express milk for her child.”
As a result of these alleged PUMP Act violations, combined with the WHD’s conclusion that the employer also violated child labor provisions of the Fair Labor Standards Act (“FLSA”), the agency assessed the employer $6,810 in civil money penalties.
Reminder – What is the PUMP Act?
As we reported in early January, the PUMP Act amended the 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. 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.
Jumping right on its new enforcement obligations, the WHD announced its first PUMP Act enforcement action in May (see our story here). In that case, the WHD settled with a corporate-owned location of Whataburger Restaurant LLC allegations that the employer 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. Monday’s announcement appears to be the second enforcement action announced by the WHD since the PUMP Act took effect earlier this year.
How Does the PUMP Act Differ from the Pregnant Workers Fairness Act?
Employers should note that the PUMP Act is not to be confused with the Pregnant Workers Fairness Act (“PWFA”). The PWFA requires a covered entity to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.
Although both statutes were enacted on December 29, 2022, as part of the bipartisan FY 2023 Budget legislation (H.R. 2617), the PWFA did 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 August, the EEOC published its Notice of Proposed Rulemaking (“NPRM”) on regulations to implement the PWFA. Comments on the proposal are due Tuesday, October 10, 2023, and you can submit them here. (For more information on this NPRM, see our story here). Thus far, the public has submitted around 39,000 comments on the proposal.
To assist employers to understand these new compliance obligations, the WHD has a PUMP Act landing webpage and the EEOC has a PWFA landing webpage. These landing pages contain posters and other guidance tools.
Enforcement MOU Outlines Cooperation in Enforcement of These Related Laws
Earlier this month, the WHD and the EEOC issued separate announcements stating that they signed a Memorandum of Understanding (“MOU”) to enhance and maximize the enforcement of federal laws and regulations. This MOU outlines procedures the two agencies will follow in working together to address the need for information sharing, joint investigations, training, and outreach. Both announcements noted that the agencies jointly presented several events to raise awareness of the PUMP Act and the PWFA and will partner on future engagements as part of the new agreement.