After much speculation on the impact of a new federal law requiring certain employers to give unpaid pump breaks to certain employees (and my advice to Curb Your Enthusiasm), the U.S. Department of Labor has issued a Fact Sheet.
Fact Sheet #73: Break Time for Nursing Mothers under the FLSA restates the requirements of the amendment to the Fair Labor Standards Act which went into effect this past March and which requires unpaid breaks for certain employees to pump breast milk and private space in which to pump.
While the text of the Fact Sheet provides little clarification of the new law – the penalty to employers for violating the law is still unclear – and is not an official position statement or regulation, it may indicate the Department of Labor is better prepared to accept complaints than it was in March.
Employees seeking more information should "call [the DOL] toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243)." While there have been no public reports of employees using this new law, I have also seen no reports of the DOL rejecting complaints. Any nursing mother having trouble with employer compliance with the federal workplace pumping law should feel free to write about it here.
[...] This post was mentioned on Twitter by Jake Aryeh Marcus, Scotti Weintraub. Scotti Weintraub said: RT @JakeAryehMarcus: New blog post: U.S. Department of Labor Issues Fact Sheet on New Workplace Pumping Law http://bit.ly/9BdGnt [...]
Jake’s early, sobering analysis of this law was spot-on. The “fact” sheet only confirms what we know from Jake’s piece, (see link above) “Curb Your Enthusiasm About the New Federal Workplace Pumping Law,” which I strongly urge everyone to re-read: to wit, that statute, regardless of what it may or may not provide in the way of actual enforcement mechanisms for working Moms who want to pump, does NOT provide anything to women who are exempt from the overtime provisions of the FSLA. E.g., Congress deliberately put this provision in a Depression-era statute that only applies to hourly employees, so the workplace pumping provision within it only applies to women who work for an hourly wage, and are entitled to overtime, work for employers with over 50 employees (hmm, does that include full time independent contractors?) and for whom compliance would not constitute an undue hardship.
There is nothing in the fact sheet or the link to which the fact sheet refers you for “more information” that illuminates any of the critical questions posed about remedies and enforcement in Jake’s “Curb Your Enthusiasm About the New Federal Workplace Pumping Law.”
There are significant legal questions about how to enforce this law against non-compliant employers, whether a women has to suffer a termination for insisting to pump in order to bring suit for reinstatement? What is the plan at DOL for enforcement? Is this fact sheet simply a sop to satisfy people who, undoubtedly as a result of commentary like Jake’s, were raising questions with their local Congressperson. Fact sheets are fine, but they are not law, regulation, or even guidance.
Jake was right about this statute when it was first publicized, because over the years she has developed not only a remarkable expertise in state laws regarding breastfeeding and workplace pumping, but also because she has a keen and skeptical approach to any law or bill that appears to be too good to be true. The language of this bill was designed to fool people. It is any lawyer’s most valuable skill in interpreting legislation to be able to identify what is worthless in new legislation.
At the end of “To Kill a Mockingbird” the nice lady, Maudy, across the street from Atticus Finch’s house tells Jem and Scout that their father is one of those people who do our unpleasant tasks for us? (If you don’t know the movie, go rent it now and watch it with the kids!) And, you know the saying that there are two things you don’t want to watch being made, sausage and legislation? Well, Jake is one of those people we rely upon to break the shrinkwrap and dissect the legislative sausage for us. It is always disgusting, and frequently illuminating. I am a practicing litigation attorney, and rely on other lawyers to do this for me. It’s that onerous!
This not a half full situation, as someone said in a prior post. For Moms who are covered by the statute,the federal glass currently is bone dry. Seek state remedies, and don’t let any state lawmaker tell you that there is a federal law that covers the issue. The federal law is crap. And, if you read Jake’s posts, the fact sheet and the one page of law that we are talking about, the conclusion that it is crap is obvious.
Whether the DOL finds a Constitutional way to put teeth in it, remains to be seen, but the fact sheet does not provide a basis for feeling optimistic about future vigorous enforcement, if such a thing is even permissible under this provision of the FSLA at all.