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On December 29, 2022, the PUMP Act was signed into law.[1] The PUMP Act further amended the Fair Labor Standards Act (“FLSA”) “to extend the reasonable break time and space protections to pump breast milk at work to as many as 9 million more employees who were not previously covered.”[2] The Act also “extended available remedies for violation of any provision of the pump at work requirements,” providing a tool for enforcing the vital legislation.[3]  This blog post will discuss the PUMP Act and provide a hypothetical case to illustrate a potential claim under the Act.

Under the PUMP Act, employers are required to “provide nursing employees reasonable break time each time such employee has need to pump breast milk at work for one year after the child’s birth.”[4] An employer cannot deny an employee covered by the PUMP Act a break to pump.[5] As the Department of Labor notes, “[t]he frequency, duration, and timing of breaks needed will vary depending on factors related to the nursing employee and the child.”[6] The location of the pumping space and the effort needed to express milk may also impact the duration of the break.[7] An employee and employer can generally agree to a schedule, “but an employer cannot required an employee to adhere to a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump” and such a schedule may understandably need to be adjusted.[8] Employees who telework are also eligible to take pump breaks.[9]

Regarding compensation, the “PUMP Act does not require that employees be compensated for break time needed to pump breast milk ‘unless otherwise required by Federal or State law or municipal ordinance.”[10] Pursuant to the FLSA, hours worked must be compensated and break time to pump will be considered as time worked if the employee is not completely relieved from duty during the entirety of the break.[11] Breaks of twenty (20) minutes or less provided by the employers must be counted as time worked.[12] If an employer provided paid break time, and the pumping employee wishes to use the paid break to pump, the employer must pay the employee as it would others.[13] It is important to note that employers cannot reduce the salaries of salaried exempt employees for taking a pump break.[14]

Regarding the space requirement, the PUMP Act requires that employees have access to a space that is:

1. Shielded from view;
2. Free from intrusion from coworkers and the public;
3. Available each time it is needed by the employee; and
4. Not a bathroom.[15]

As the DOL has noted, “[u]sing a bathroom to pump breast milk raises health and safety concerns, which may include the risk of contracting bacteria in breast milk or breast pump equipment.”[16] An employer must ensure that the space is private.[17] For example, the employer may display a sign when the space is in use or have a lock for the door.[18] Furthermore, the “location must be functional as a space for pumping. A space must contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump.”[19] Employers must also permit the employee to safely store the milk while at work, “such as in an insulated food container, personal cooler, or refrigerator.”[20]

There are limited exceptions to complying with the pump at work requirements under the PUMP Act. Specifically, “[t]he FLSA provided an exemption for small employers if compliance would require an undue hardship and includes exemptions that affect certain employees of air carriers, rail carriers, and motorcoach services operators.”[21] As to the small employer (fewer than fifty employees) exception, the DOL notes that “[w[hether compliance would be an undue hardship is determined on an individual employee basis. The employer bears the burden of proof that compliance with the pump at work provisions would be an undue hardship in the particular circumstances.”[22] The employer “must be able to demonstrate that the employee’s specific needs for pumping at work is an undue hardship due to the difficulty or expense of compliance in light of the size, financial resources, nature, and structure of the employer’s business.”[23]

An employer who is found to have violated PUMP Act may face serious consequences. The remedies “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.”[24] The FLSA also contains provisions prohibiting employers from retaliating against employees who seek the protections under the PUMP Act.[25] As noted by the DOL, the Act protects employees whether or not they complain in writing.[26] “Retaliation occurs when an employer, through a manager, supervisor, administrator or director, fires an employee or takes any other type of adverse action (i.e., an action that would dissuade a reasonable employee from raising a complaint) against an employee for engaging in protected activity (e.g., making a complaint, speaking with the DOL, or requesting payment of wages).”[27] As the DOL advises, “[a]n employee may . . . file a private suit regarding an employer’s failure to provide a space to pump, if the employee has notified the employer of the need for space and has allowed 10 days for the employer to come into compliance.”[28] The waiting requirement is unnecessary if the employer expressed a refusal to comply with the PUMP Act, where an employee was terminated for requesting reasonable break time or space, or where an employee opposed an employer’s conduct related to the pump at work rights.[29]

By way of example, imagine that there is an employee of Binks’s Bistro, Padmé, who speaks with the owner, Mr. Binks, and works out an arrangement where she will be permitted to take four twenty-five-minute breaks each day when she first returns to work from maternity leave. Mr. Binks must continue to work with Padmé regarding the reasonable break time needed. Mr. Binks further works with Padmé to ensure she has a space that meets the requirements of the FLSA, as it would not cause an undue hardship for his business to accommodate Padmé. Mr. Binks smartly realizes that if he fails to comply with the requirements of the PUMP Act, he could face serious consequences.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] U.S. Dep’t of Labor, Field Assistance Bulletin No. 2023-02 re: Enforcement of Protections for Employees to Pump Breast Milk at Work, at *1, available at https://www.dol.gov/sites/dolgov/files/WHD/fab/2023-2.pdf (last visited March 28, 2025). We have discussed the FLSA in a previous blog post.  Jill S. Schwartz & Associates, P.A., The Fair Labor Standards Act Turns 85: A Brief Overview of ‘The Law That Changed the American Workplace,” available at https://www.schwartzlawfirm.net/the-fair-labor-standards-act-turns-85-a-brief-overview-of-the-the-law-that-changed-the-american-workplace-1/ (last visited March 28, 2025).

[2] U.S. Dep’t of Labor, Field Assistance Bulleting No. 2023-02, at *1. As the Department of Labor notes in Field Assistance Bulletin No. 2023-02, the FLSA was amended in 2010 to “first include break time and space requirements for nursing employees to pump breast milk at work.” Id.

[3] Id.

[4] Id., at *2.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id., at *3.

[15] Id., at *4.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id., at *5.

[22] Id.

[23] Id.

[24] Id., at *7.

[25] Id.

[26] Id.

[27] Id.

[28] Id., at *8.

[29] Id.

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