Author: Esther Bryant

To round out the celebration of Women’s History Month, the attorneys at Bryant Legal, LLC wanted to highlight two laws that directly affect women, particularly pregnant and breastfeeding employees.

President Biden signed the PUMP for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA) into law on December 29, 2022, along with the Consolidated Appropriations Act, 2023.

As a result of the PUMP Act and the PWFA going into effect, pregnant and nursing employees now have expanded protections in the workplace.

What is the PUMP Act?

The PUMP Act expands the protections of the Fair Labor Standards Act (FLSA) for lactating and nursing employees. The FLSA establishes minimum wage, overtime pay, regular rate of pay, bonuses, recordkeeping, and other wage and hour standards that affect employees. (See 29 U.S.C. § 201, et seq.)

What Protections for Nursing Mothers are Covered by the PUMP Act?

Reasonable Break Time for Nursing Mothers

As a result of the recent enactment of the PUMP Act, the FLSA requires employers with fewer than 50 employees to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time an employee has need to express the milk.

Importantly, employees who work remotely are also eligible for breast pump breaks under the FLSA on the same basis as employees who work at the job site.

In order for an employee to have an appropriate break time to pump breast milk, the employee must be completely relieved from duty or must be paid for the entire break for performing off-the-clock work.

By way of one example, if a nursing mother takes the time to pump breast milk but continues to answer work emails or takes a work phone call during that time, then she must be compensated for that time because she was not completely relieved from duty.

As such, if a nursing mother pumps during an unpaid meal break, then that time should be compensable as it is not a bona fide meal break under the law.

A Private Space to Pump

Additionally, employers must provide a place to breast pump at work that is not a bathroom (“non-bathroom space”) where nursing moms are shielded from view and free from intrusion from coworkers and the public.

What is the PWFA?

With respect to the PWFA, it requires covered employers to provide “reasonable accommodations” to an employee’s limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an “undue hardship.”

What is a Reasonable Accommodation?

Under the PWFA, a reasonable accommodation is one that allows a pregnant employee to be able to perform the essential functions of her job.

For example, an employer might be required to provide accommodations for pregnant employees who have lifting restrictions due to pregnancy.

What is an Undue Hardship?

An undue hardship is an accommodation that causes significant difficulty or expense for the employer.

The employer has the burden of demonstrating that the proposed accommodation causes undue hardship in the particular circumstances, or that the proposed accommodation eliminates an essential function of the job requirement.

“Undue hardship” is a high burden to overcome and generally means that the accommodation requires significant difficulty or expense when considered in light of a variety of factors, including:

1. The nature and cost of the accommodation needed
2. The overall financial resources of the facility
3. The type of operation or operations of the company

Benefits of the PWFA

Expanded Protections for Pregnant Employees

The PWFA allows additional protections for pregnant employees along with the protections of Title VII of the Civil Rights Act of 1964 (Title VII), as amended. (See 42 U.S.C. § 2000e, et seq.)

Before the PWFA, employers were only required to provide accommodations to a pregnant employee whose pregnancy, childbirth, or related medical condition rose to the level of a disability as defined under the Americans with Disabilities Act (ADA), as amended. (See 42 U.S.C. § 12101, et seq.)

Shielded from Retaliation

Furthermore, employees protected by the PUMP Act and the PWFA are shielded from retaliation for engaging in protected activity as defined under the FLSA.

Under the FLSA, an employer cannot “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act….” (See 29 U.S.C. § 215(a)(3)).

Importantly, employees are protected regardless of whether the complaint is made orally or in writing. Additionally, an employer cannot interfere with an employee’s rights under the PUMP Act and PWFA.

For example, if a nursing employee, who is a delivery driver, takes breaks to pump breast milk a few times per day, and then her supervisor complains about how the breaks are interfering with the delivery schedule and, as a result, moves her into a different position that pays less, then this would be considered unlawful retaliation under the FLSA.

Has Your Employer Discriminated Against You for Breastfeeding or Your Pregnancy? Contact Bryant Legal, LLC for a Free Case Consultation

If you believe that you have been discriminated against based on your pregnancy or you have not been paid for reasonable break time to express breast milk, or if have any other questions related to your employment, then contact the employment attorneys at Bryant Legal, LLC for a free and confidential initial consultation.

“I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

– Ruth Bader Ginsburg

A champion for women’s rights, a leader, the rebel with the infamous collar—all accurate ways to describe Supreme Court Justice Ruth Bader Ginsburg. RBG helped to spearhead the fight for women’s equality, one dissent at a time. On this first day of Women’s History Month, it is important to remember a few key legal wins in history that Justice Ginsburg ultimately influenced through her role as a Supreme Court Justice. 

Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), prohibits employment discrimination based on an individual’s race, color, religion, sex, and national origin. The Equal Pay Act of 1963 and the Lilly Ledbetter Fair Pay Act of 2009 amended a few components of Title VII. The Equal Pay Act prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions. See EEOC-NVTA-0000-13. In a nutshell, employers must pay men and women equally when they are performing the same work.

The Lilly Ledbetter Fair Pay Act overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), a case that involved years of discriminatory pay practices between the female plaintiff and her male coworkers who performed the same work. The Supreme Court ultimately held that Ms. Ledbetter was barred from bringing her claim because the pay practice started years before, precluding her claim, concluding that she should have filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within “180 days after each allegedly discriminatory employment decision was made and communicated to her.” Id. at 619.

Through her dissent, Justice Ginsburg explained that the Court’s decision overlooked common methods of discriminatory pay practices, in that pay disparities often occur in small increments and comparative pay information is often hidden from employees. Id. at 645. In essence, how would an employee know that she is not being paid fairly in enough time for her to file a charge of discrimination? Justice Ginsburg went on to argue that the Court’s “cramped interpretation” of Title VII contradicts the remedial purpose of the statute. Id. at 660.

With the help of Justice Ginsburg, the Lilly Ledbetter Fair Pay Act was pushed through and signed into law making each paycheck that contains discriminatory compensation a separate violation, so employees have 180 days to file a charge with the EEOC after each discriminatory paycheck, rather than from when the discrimination first occurred.

In recognition of Women’s History Month, should you have any questions about your employment—whether that be about equal pay, being treated less favorably in the terms, conditions, or benefits of employment, or you believe you have been wrongfully terminated and/or retaliated against because of your sex, contact the employment attorneys at Bryant Legal, LLC for a free and confidential initial phone consultation.

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