[House Report 117-102]
[From the U.S. Government Publishing Office]


117th Congress    }                                    {      Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                    {      117-102

======================================================================



 
     PROVIDING URGENT MATERNAL PROTECTIONS FOR NURSING MOTHERS ACT

                                _______
                                

 July 22, 2021.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Scott of Virginia, from the Committee on Education and Labor, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 3110]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and Labor, to whom was referred 
the bill (H.R. 3110) to amend the Fair Labor Standards Act of 
1938 to expand access to breastfeeding accommodations in the 
workplace, and for other purposes, having considered the same, 
reports favorably thereon with an amendment and recommends that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     3
Committee Action.................................................     5
Committee Views..................................................     8
Section-by-Section Analysis......................................    21
Explanation of Amendments........................................    22
Application of Law to the Legislative Branch.....................    22
Unfunded Mandate Statement.......................................    22
Earmark Statement................................................    23
Roll Call Votes..................................................    23
Statement of Performance Goals and Objectives....................    27
Duplication of Federal Programs..................................    27
Hearings.........................................................    27
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    27
New Budget Authority and CBO Cost Estimate.......................    27
Committee Cost Estimate..........................................    29
Changes in Existing Law Made by the Bill, as Reported............    30
Minority Views...................................................    45

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Providing Urgent Maternal Protections 
for Nursing Mothers Act'' or the ``PUMP for Nursing Mothers Act''.

SEC. 2. BREASTFEEDING ACCOMMODATIONS IN THE WORKPLACE.

  (a) Expanding Employee Access to Break Time and Place.--The Fair 
Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) is amended--
          (1) in section 7, by striking subsection (r);
          (2) in section 15(a)--
                  (A) by striking the period at the end of paragraph 
                (5) and inserting ``; and''; and
                  (B) by adding at the end the following:
          ``(6) to violate any of the provisions of section 18D.'';
          (3) in section 16(b) by striking ``7(r)'' each place the term 
        appears and inserting ``18D of this title''; and
          (4) by inserting after section 18C the following:

``SEC. 18D. BREASTFEEDING ACCOMMODATIONS IN THE WORKPLACE.

  ``(a) An employer shall provide--
          ``(1) a reasonable break time for an employee to express 
        breast milk each time such employee has need to express breast 
        milk for the 2-year period beginning on the date on which the 
        circumstances related to such need arise; and
          ``(2) a place, other than a bathroom, that is shielded from 
        view and free from intrusion from coworkers and the public, 
        which may be used by an employee to express breast milk.
  ``(b)(1) Subject to paragraph (2), an employer shall not be required 
to compensate an employee receiving break time under subsection (a)(1) 
for any time spent during the workday for such purpose unless otherwise 
required by Federal or State law or municipal ordinance.
  ``(2) Break time provided under subsection (a)(1) shall be considered 
hours worked if the employee is not completely relieved from duty 
during the entirety of such break.
  ``(c) An employer that employs fewer than 25 employees shall not be 
subject to the requirements of this section, if such requirements would 
impose an undue hardship by causing the employer significant difficulty 
or expense when considered in relation to the size, financial 
resources, nature, or structure of the employer's business.
  ``(d) No provision of this section or of any order thereunder shall 
excuse noncompliance with any Federal or State law or municipal 
ordinance that provides greater protections to employees than the 
protections provided for under this section.
  ``(e)(1) Subject to paragraph (2), before an employee commences an 
action to recover liability under section 16(b) for a violation of 
paragraph (a)(2), the employee shall inform the employer of the failure 
to provide adequate place and provide the employer with 10 calendar 
days after such notice is provided to come into compliance with 
subsection (a)(2) with respect to such employee.
  ``(2) Paragraph (1) shall not apply in the case that--
          ``(A) the employee has been discharged because the employee 
        has made a request for break time or place under this section 
        or has opposed any employer conduct related to this section; or
          ``(B) the employer has indicated that the employer has no 
        intention of complying with subsection (a)(2).
  ``(f) The circumstances described in subsection (a)(1) arise if an 
employee--
          ``(1) begins providing breast milk for a nursing child; or
          ``(2) gives birth, including to--
                  ``(A) a stillborn child; or
                  ``(B) a child over whom the employee does not retain 
                legal custody.''.
  (b) Clarifying Remedies.--Section 16(b) of the Fair Labor Standards 
Act of 1938 (29 U.S.C. 216(b)) is amended by striking ``15(a)(3)'' each 
place the term appears and inserting ``7(r) or 15(a)(3)''.
  (c) Guidance.--Not later than 60 days after the date of enactment of 
this Act, the Secretary of Labor shall issue guidance with respect to 
employer compliance with section 18D of the Fair Labor Standards Act of 
1938, as amended by this Act, which shall be similar, with respect to 
specific examples of compliance, to the guidance relating to 
``Supporting Nursing Moms at Work'' published on the website of the 
Office on Women's Health of the Department of Health and Human Services 
as of such date of enactment.

SEC. 3. EFFECTIVE DATE.

  (a) Expanding Access.--The amendments made under section 2(a) shall 
take effect on the date that is 120 days after the date of enactment of 
this Act.
  (b) Remedies and Clarification.--The amendments made under section 
2(b) shall take effect on the date of enactment of this Act.

                          Purpose and Summary

    Despite the health benefits of breastfeeding for both 
mothers and infants, too many nursing employees face obstacles 
to pumping breast milk in the workplace, making it difficult to 
continue breastfeeding while employed. Break time and a private 
space to express breast milk are critical for supports for 
breastfeeding employees. Enacted in 2010, the break time for 
nursing mothers provision under the Fair Labor Standards Act of 
1938\1\ (FLSA) requires employers to provide nursing employees 
with reasonable break time and non-bathroom space free from 
view and intrusion to express breast milk while at work.\2\ 
Gaps in the law limit access to these protections and leave 
employees unable to recover in court when their employers fail 
to comply with the law's requirements. H.R. 3110, the Providing 
Urgent Maternal Protections (PUMP) for Nursing Mothers Act, 
would extend these protections to more employees and ensure 
employees can recover appropriate forms of relief in court when 
employers violate the law. Strengthening the law in this way 
will promote the health and well-being of nursing employees and 
infants.
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    \1\29 U.S.C. Sec. Sec. 201-219.
    \2\The Patient Protection and Affordable Care Act, Pub. L. No. 111-
148, 124 Stat. 577 Sec. 4207; 29 U.S.C. Sec. 207(r).
---------------------------------------------------------------------------
    H.R. 3110, as amended in markup, has been endorsed by 
nearly 150 organizations, including: 1,000 Days; 2020 Mom; A 
Better Balance; Academy of Breastfeeding Medicine; Academy of 
Nutrition and Dietetics; Alabama Breastfeeding Committee; 
Alaska Breastfeeding Coalition; Alimentacion Segura Infantil; 
American Academy of Family Physicians; American Academy of 
Nursing; American Academy of Pediatrics; American Association 
of University Women; American Civil Liberties Union; American 
College of Obstetricians and Gynecologists; American Federation 
of Teachers; American Public Health Association; API 
Breastfeeding Task Force; Arizona Youth Partnership; 
Association of Maternal & Child Health Programs; Association of 
State Public Health Nutritionists; Baby And Me LC; Baby Cafe 
Bakersfield; Baby Cafe USA; Baby-Friendly USA, Inc.; Barry 
Pediatrics; Beaufort-Jasper-Hampton; Comprehensive Health 
Services; BetaCarrotTeen; Birthing Miracles Pregnancy Services 
LLC; Black Breastfeeding Caucus; Black Mothers' Breastfeeding 
Association; Breastfeed Durham; Breastfeed Macomb; Breastfeed 
Orange NC; Breastfeeding Coalition of Palm Beach County; 
Breastfeeding Coalition of Washington; Breastfeeding Education 
and Support Team of the Easter Upper Peninsula; Breastfeeding 
Family Friendly Communities; Breastfeeding Hawaii; 
Breastfeeding Task Force of Greater Los Angeles; Breastfeeding 
USA; Bright Future Lactation Resource Centre Ltd.; Bronx 
Breastfeeding Coalition; California Breastfeeding Coalition; 
Center for Health Equity, Education, and Research; Center for 
WorkLife Law; Centro Pediatrico de Lactancia y Crianza; CHI 
Mercy Hospital; Coalition of Labor Union Women; Coalition of 
Oklahoma Breastfeeding Advocates; Connecticut Breastfeeding 
Coalition; Connecticut Women's Education and Legal Fund; 
Constellation Consulting, LLC; Courthouse Lactation Space Task 
Force of the Florida Association for Women Lawyers; Dancing For 
Birth, LLC; District of Columbia Breastfeeding Coalition; Equal 
Rights Advocates; Every Mother, Inc.; Florida Breastfeeding 
Coalition; Florida Outreach Childbirth Education Program; Geelo 
Wellness; Genesee County Breastfeeding Coalition; Harambee 
Village Doulas; HealthConnect One; Healthy Children Project, 
Inc.; Human Milk Banking Association of North America; Hurley 
Medical Center; Indiana Breastfeeding Coalition; Indianapolis 
Urban League; Indigenous Breastfeeding Counselor; InterCare 
Community Health Network; InterCare Community Health Network, 
Women, Infants, and Children Program; International Board of 
Lactation Consultant Examiners; International Breastfeeding 
Institute; International Childbirth Education Association; 
Justice for Migrant Women; Kansas Breastfeeding Coalition; La 
Leche League Alliance; La Leche League USA; Lactation 
Improvement Coalition of Kentucky; Lactation Lighthouse; 
Lactation Training Lab; LactPower; Learn Lactate Grow; Maryland 
Breastfeeding Coalition; Maternity Care Coalition; Metro 
Detroit/Wayne County Breastfeeding Coalition; Metropolitan 
Hospital; Michigan Breastfeeding Network; Missouri 
Breastfeeding Coalition; Mom Congress; Mom2Mom Global; 
MomsRising; Montana State Breastfeeding Coalition; Montefiore 
WIC Program; Mother Heart Birth Services; Mothers' Milk Bank 
Northeast; Mother's Own Milk Matters; National Association of 
Pediatric Nurse Practitioners; National Birth Equity 
Collaborative; National Education Association; National 
Employment Law Project; National Lactation Consultant Alliance; 
National Organization for Women; National Partnership for Women 
& Families; National WIC Association; National Women's Law 
Center; Native Breastfeeding Council; NETWORK Lobby for 
Catholic Social Justice; New Hampshire Breastfeeding Task 
Force; New Jersey Breastfeeding Coalition; New Mexico 
Breastfeeding Task Force; New York Statewide Breastfeeding 
Coalition; Next Generation Lactation Service; North Carolina 
Breastfeeding Coalition; Nourished Beginnings; Nursing Mothers 
Counsel, Inc.; Nurture.; Nurturely; Nutrition First; NYC 
Breastfeeding Leadership Council, Inc.; Ohio Breastfeeding 
Alliance; Precious Jewels Moms Ministries; pumpspotting; 
Reaching Our Sisters Everywhere, Inc; Sacramento Breastfeeding 
Coalition; San Diego County Breastfeeding Coalition; Search 
Influence; Solutions for Breastfeeding; Southeast Michigan 
IBCLC's of Color; Speaking of Birth; Tennessee Breastfeeding 
Coalition; The Institute for the Advancement of Breastfeeding 
and Lactation Education; The New York Milk Bank; U.S. 
Breastfeeding Committee; U.S. Chamber of Commerce; Underwood 
Early Learning Center LLC; Virginia Breastfeeding Advisory 
Committee; Virginia Breastfeeding Coalition; West Virginia 
Breastfeeding Alliance; Western Kansas Birthkeeping; WIC 
Nutrition, Sonoma County Indian Health Project, Inc.; Wisconsin 
Breastfeeding Coalition; Women Employed; Women-Inspired 
Systems' Enrichment; Women's Law Project; Women's Rights and 
Empowerment Network; YWCA of the University of Illinois; and 
ZERO TO THREE.

                            Committee Action


                             112TH CONGRESS

    On August 1, 2011, Representative Carolyn Maloney (D-NY-12) 
introduced H.R. 2758, the Breastfeeding Promotion Act of 2011. 
The bill amended the Civil Rights Act of 1964\3\ to include 
lactation as protected conduct under such Act and amended the 
FLSA to extend the nursing mother break time and space 
protections to certain statutorily excluded workers. The bill 
was referred to the House Committee on Education and the 
Workforce, where it was referred to the Subcommittee on Health, 
Employment, Labor, and Pensions and to the Subcommittee on 
Workforce Protections. The bill had 16 Democratic cosponsors. 
No further action was taken on the bill.
---------------------------------------------------------------------------
    \3\42 U.S.C. Sec. 2000e.
---------------------------------------------------------------------------
    On August 1, 2011, Senator Jeff Merkley (D-OR) introduced 
S. 1463, the Breastfeeding Promotion Act of 2011, as a 
companion bill to H.R. 2758. The bill was referred to the 
Senate Committee on Health, Education, Labor and Pensions. The 
bill had five Democratic cosponsors. No further action was 
taken on the bill.

                             113TH CONGRESS

    On May 9, 2013, Representative Maloney introduced H.R. 
1941, the Supporting Working Moms Act of 2013. The bill amended 
the FLSA to extend the nursing mother break time and space 
protections to statutorily excluded workers. The bill was 
referred to the House Committee on Education and the Workforce. 
The bill had 23 Democratic cosponsors. No further action was 
taken on the bill.
    On May 13, 2013, Senator Merkley introduced S. 934, the 
Supporting Working Moms Act of 2013, as a companion bill to 
H.R. 1941. The bill was referred to the Senate Committee on 
Health, Education, Labor and Pensions. The bill had three 
Democratic cosponsors. No further action was taken on the bill.

                             114TH CONGRESS

    On November 19, 2015, Representative Maloney introduced 
H.R. 4113, the Supporting Working Moms Act of 2015. This bill 
was identical to the version introduced in the 113th Congress. 
The bill was referred to the House Committee on Education and 
the Workforce. The Education and the Workforce Committee 
referred the bill to the Subcommittee on Workforce Protections. 
The bill had 21 Democratic cosponsors. No further action was 
taken on the bill.
    On November 19, 2015, Senator Merkley introduced S. 2321, 
the Supporting Working Moms Act of 2015, as a companion bill to 
H.R. 4113. The bill was referred to the Senate Committee on 
Health, Education, Labor and Pensions. The bill had seven 
Democratic cosponsors and one Republican cosponsor. No further 
action was taken on the bill.

                             115TH CONGRESS

    On July 14, 2017, Representative Maloney introduced H.R. 
3255, the Supporting Working Moms Act of 2017. This bill was 
identical to the version introduced in the 113th Congress. The 
bill was referred to the House Committee on Education and the 
Workforce. The bill had 22 Democratic cosponsors. No further 
action was taken on the bill.
    On November 14, 2017, Senator Merkley introduced S. 2122, 
the Supporting Working Moms Act of 2017, as a companion bill to 
H.R. 3255. The bill was referred to the Senate Committee on 
Health, Education, Labor and Pensions. The bill had 12 
Democratic cosponsors and 1 Republican cosponsor. No further 
action was taken on the bill.

                             116TH CONGRESS

    On January 9, 2020, Senator Merkley introduced S. 3170, the 
Providing Urgent Maternal Protections (PUMP) for Nursing 
Mothers Act. The bill amended the FLSA by extending nursing 
mother break time and space protections to statutorily excluded 
employees, clarifying that pumping breaks must be paid if the 
employee is not completely relieved of duty during the break or 
if employers are otherwise required to pay for break time under 
other federal, state or local laws, and allowing employees to 
seek legal and equitable relief in court for violations. The 
bill was referred to the Senate Committee on Health, Education, 
Labor and Pensions. The bill had five Democratic cosponsors and 
one Republican cosponsor.
    On January 13, 2020, Representative Maloney introduced H.R. 
5592, the Providing Urgent Maternal Protections (PUMP) for 
Nursing Mothers Act, as a companion bill to S. 3170. The bill 
was referred to the House Committee on Education and Labor. The 
bill had five Democratic cosponsors and one Republican 
cosponsor.
    On January 28, 2020, the House Committee on Education and 
Labor's Subcommittee on Health, Employment, Labor, and Pensions 
and Subcommittee on Workforce Protections held a joint hearing 
entitled ``Expecting More: Addressing America's Maternal and 
Infant Health Crisis.'' The hearing examined the maternal and 
infant health crisis in the United States, particularly among 
Black women and other women of color, and addressed how H.R. 
5592, the Providing Urgent Maternal Protections (PUMP) for 
Nursing Mothers Act would close gaps in the federal break time 
and space law. The witnesses were Stacey D. Stewart, President 
and CEO, March of Dimes, Arlington, VA; Nikia Sankofa, 
Executive Director, United States Breastfeeding Committee, 
Washington, DC; and, Dr. Joia Crear Perry, MD, President, 
National Birth Equity Collaborative, New Orleans, LA.

                             117TH CONGRESS

    On May 11, 2021, Representative Maloney introduced H.R. 
3110, the Providing Urgent Maternal Protections (PUMP) for 
Nursing Mothers Act. Similar to the 116th Congress, the bill 
amends the FLSA by extending nursing mother break time and 
space protections to statutorily excluded employees, clarifying 
that pumping breaks must be paid if the employee is not 
completely relieved of duty during the break or if employers 
are otherwise required to pay for break time under other 
federal, state or local laws, and allowing employees to seek 
legal and equitable relief in court for violations. The bill 
has three Democratic cosponsors and three Republican 
cosponsors. The bill was referred to the House Committee on 
Education and Labor.
    On May 17, 2021, Senator Merkley introduced S. 1658, the 
Providing Urgent Maternal Protections (PUMP) for Nursing 
Mothers Act, as a companion bill to H.R. 3110. The bill has 
three Democratic cosponsors and one Republican cosponsor. The 
bill was referred to the Senate Committee on Health, Education, 
Labor and Pensions.
    On March 18, 2021, the House Committee on Education and 
Labor's Subcommittee on Civil Rights and Human Services and 
Subcommittee on Workforce Protections held a joint hearing 
entitled ``Still Fighting for Fairness: Examining Legislation 
to Confront Workplace Discrimination'' (2021 Joint Subcommittee 
Hearing) during which the subject matter of H.R. 3110 was 
considered in anticipation of the legislation being 
reintroduced this Congress. The Joint Subcommittee heard 
testimony relevant to H.R. 3110 from Dina Bakst, Co-Founder and 
Co-President, A Better Balance: The Work & Family Legal Center, 
New York, NY, and, Camille A. Olson, Partner, Seyfarth Shaw 
LLP, Chicago, IL.
    On May 26, 2021, the House Committee on Education and Labor 
met for a full committee markup of H.R. 3110, the Providing 
Urgent Maternal Protections (PUMP) for Nursing Mothers Act. The 
Committee adopted an amendment in the nature of a substitute 
(ANS) offered by Representative Alma Adams (D-NC-12). The ANS 
incorporated the provisions of H.R. 3110 with the following 
additions: (1) a provision to clarifies that nothing in the 
bill excuses noncompliance with other federal or state laws or 
municipal ordinances that provide greater break time or space 
protections; (2) a provision to change the current undue 
hardship exemption to apply to employers with fewer than 25 
employees, rather than employers with fewer than 50 employees 
under current law; (3) a provision to require employees to 
inform their employers about inadequate space ten days before 
filing suit for violating place requirements; and, (4) a 
provision to require the U.S. Secretary of Labor to issue 
guidance with specific examples of how to comply with the 
requirements of the law based on current guidance for providing 
break time and space from the U.S. Department of Health and 
Human Services (HHS) Office of Women's Health (OWH).
    Ranking Member Virginia Foxx (R-NC-05) offered a substitute 
amendment to the ANS (Foxx ANS). The Foxx ANS (1) removed 
certain categories of employees, including agricultural 
employees and transportation employees, from nursing mother 
break time and space protections; (2) removed provisions 
allowing employees to seek legal and equitable relief; (3) 
removed a provision clarifying that if other federal, state, or 
local laws require that break time be paid, an employer must 
compensate an employee for such break time; (4) made remedies 
effective 120 days after enactment; (5) included a provision 
stipulating that time where an employee is not completely 
relieved of duty is only considered ``hours worked'' to the 
extent that such time is spent on ``such activities''; (6) 
included a provision to hold the employer harmless for 
violating both break time and place requirements if the 
employer receives notice that they are in violation and 
remedies the violation within 30 days; and, (7) required the 
Government Accountability Office to issue a report to Congress 
evaluating the implementation and expansion of protections 
under the Act. The amendment was defeated by a vote of 17 Yeas 
and 29 Nays.
    Representative Andy Levin (D-MI-09) offered an amendment to 
the ANS to ensure an employee is covered by break time and 
space protections when they begin nursing a child, including an 
adopted child, or when they give birth, even if the infant is 
stillborn or the employee does not retain custody of the 
infant. Additionally, the amendment changed the duration of the 
protections from one year after the child's birth (under 
current law and the ANS) to two years after the employee gives 
birth or begins providing breast milk for a nursing child. The 
amendment was adopted by a vote of 44 Yeas and 3 Nays.
    H.R. 3110 was reported favorably, as amended, to the House 
of Representatives by a vote of 28 Yeas and 19 Nays.

                            Committee Views


 REASONABLE BREAK TIME AND A PRIVATE SPACE TO EXPRESS BREAST MILK ARE 
                CRITICAL SUPPORTS FOR NURSING EMPLOYEES

    Breastfeeding plays an important role in both maternal and 
infant health outcomes. The benefits of breastfeeding for 
infants include lower risks of asthma, obesity, and sudden 
infant death syndrome, among others.\4\ For mothers, 
breastfeeding reduces the risks of type 2 diabetes and ovarian 
and breast cancer, among other benefits.\5\
---------------------------------------------------------------------------
    \4\Office of Women's Health, U.S. Department of Health and Human 
Services, Making the Decision to Breastfeed: What are the Health 
Benefits of Breastfeeding for Mothers?, https://www.womenshealth.gov/
breastfeeding/making-decision-breastfeed (last visited Jun. 10, 2021).
    \5\ Id.
---------------------------------------------------------------------------
    The American Academy of Pediatrics recommends that infants 
be exclusively breastfed for the first six months after birth 
and continue to be breastfed, alongside food, for one year.\6\ 
The vast majority of mothers in the U.S. start out 
breastfeeding their infants. According to the most recent data 
from the Centers for Disease Control and Prevention (CDC), 84 
percent of infants born in 2017 began breastfeeding.\7\ Yet, 
only 58.3 percent of these infants were breastfed at six months 
and 35.3 percent were breastfed at the one-year mark.\8\ There 
are also significant disparities in breastfeeding rates for 
Black and White infants. Among infants born in 2015, at six 
months of age, Black infants breastfed at a rate of 44.7 
percent compared to 62 percent of White infants.\9\
---------------------------------------------------------------------------
    \6\The American Academy of Pediatrics, Policy Statement: 
Breastfeeding and the Use of Human Milk 129 Pediatrics 1, 1 (2012), 
https://pediatrics.aappublications.org/content/pediatrics/129/3/
e827.full.pdf.
    \7\Centers for Disease Control and Prevention, Breastfeeding Report 
Card United States, 2020 4 (2020), https://www.cdc.gov/breastfeeding/
pdf/2020-Breastfeeding-Report-Card-H.pdf.
    \8\CDC, supra note 8.
    \9\Jennifer L. Beauregard et al., Racial Disparities in 
Breastfeeding Initiation and Duration Among U.S. Infants Born in 2015, 
68(34) Morbidity and Mortality Weekly Report 745, 745-46 (2019), 
https://www.cdc.gov/mmwr/volumes/68/wr/pdfs/mm6834a3-H.pdf.
---------------------------------------------------------------------------
    Workplace supports for women returning to their jobs after 
giving birth have a direct impact on breastfeeding 
outcomes.\10\ Women in the U.S. often return to work during the 
critical one-year period for breastfeeding, likely as a result 
of economic need, social norms, or preference.\11\ According to 
the most recent data from the U.S. Census Bureau, from 2000 to 
2007, 57 percent of women returned to work within six months of 
giving birth to their first child and 64 percent within a 
year.\12\
---------------------------------------------------------------------------
    \10\Katy B. Kozhimannil et al., Access to Workplace Accommodations 
to Support Breastfeeding after Passage of the Affordable Care Act, 26 
Women's Health Issues 6 (2016), https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC4690749/pdf/nihms715360.pdf.
    \11\Tallesse D. Johnson, U.S. Census Bureau, Maternity Leave and 
Employment Patterns of First-Time Mothers: 1961-2008 13 (2011), https:/
/www.census.gov/prod/2011pubs/p70-128.pdf.
    \12\Johnson, supra note 11, at 14.
---------------------------------------------------------------------------
    Yet, women often face barriers to pumping breast milk in 
the workplace.\13\ Dina Bakst, testifying at the 2021 Joint 
Subcommittee Hearing, explained:
---------------------------------------------------------------------------
    \13\Liz Morris, et. al., Exposed: Discrimination Against 
Breastfeeding Workers, UC Hastings Research Paper No. 328, 7 (2019), 
http://dx.doi.org/10.2139/ssrn.3341649.

          Some workers reduce their schedules, are terminated, 
        or are forced out of the workplace, foregoing vital 
        income and familial economic security because their 
        workplaces are so hostile to their need to express 
        milk. Others simply stop breastfeeding altogether, 
        sometimes even before entering the workplace, 
        perceiving (typically correctly) the challenges as 
        insurmountable. Too many who continue in their jobs 
        struggle with harassment, health repercussions, and 
        dwindling milk supply to feed their babies.\14\
---------------------------------------------------------------------------
    \14\Fighting for Fairness: Examining Legislation to Confront 
Workplace Discrimination Before H. Subcomm. On Civil Rights and Human 
Servs. & H. Subcomm. on Workforce Prots. of the H. Comm. on Educ. and 
Labor, 117th Cong. (2021) (written testimony of Dina Bakst, Co-Founder 
and Co-President, A Better Balance: The Work & Family Legal Center, at 
17) [Hereinafter Bakst Testimony] (citation omitted).

In a national survey of women who gave birth in 2011 and 2012, 
nearly half of women indicated that their employment plans 
after giving birth impacted their breastfeeding decisions, and 
33 percent reported that employment was an obstacle to 
breastfeeding.\15\ Low-income women, who are disproportionately 
women of color, may face greater hurdles to maintaining 
employment and breastfeeding based on the conditions of 
employment, such as limited break time, frequent customer 
contact, limited facilities for pumping, or unsupportive 
supervisors.\16\
---------------------------------------------------------------------------
    \15\Kozhimannil, supra note 10, at 5.
    \16\Kozhimannil, supra note 10, at 3.
---------------------------------------------------------------------------
    Workplace supports can help women balance breastfeeding and 
employment. According to a 2016 study, six months after the 
birth of their child, women with access to reasonable break 
time were 2.6 times more likely to breastfeed exclusively and 3 
times more likely to breastfeed at all than women who did not 
have access to break time and space.\17\ Guaranteed break time 
to express milk is critical because nursing women have a 
biological need to express breast milk at regular intervals 
throughout the day, even when they are away from their child. 
Employees denied reasonable break time when needed can 
experience pain, engorgement, leakage, clogged ducts, or a 
potentially dangerous infection.\18\ This may require medical 
intervention, medication, hospitalization, or, in the worst 
cases, surgery.\19\ Failure to pump breast milk can also 
diminish milk supply.\20\ According to the CDC, ``pumping at 
the same times or as often as [a] baby normally breastfeeds 
should help [a mother's] body make about the amount of milk 
[her] baby needs.''\21\ Breaks are generally needed about two 
to three times per 8-hour shift for approximately 15 to 20 
minutes at a time.\22\
---------------------------------------------------------------------------
    \17\Kozhimannil, supra note 10, at 6.
    \18\ Tara Haelle, Women Who Have To Delay Pumping Risk Painful 
Breast Engorgement, NPR (May 26, 2016, 1:53 PM), https://www.npr.org/
sections/health-shots/.
    \19\Haelle, supra note 18.
    \20\Morris, supra note 13, at 37.
    \21\U.S. Centers for Disease Control and Prevention, Pumping Breast 
Milk, https://www.cdc.gov/nutrition/infantandtoddlernutrition/
breastfeeding/pumping-breast-milk.html (last visited Jun. 10, 2021).
    \22\U.S. Centers for Disease Control and Prevention, How Much and 
How Often to Breastfeed, https://www.cdc.gov/nutrition/
infantandtoddlernutrition/breastfeeding/how-much-and-how-often.html 
(last visited Jun. 10, 2021); Reasonable Break Time for Nursing 
Mothers, 75 Fed. Reg. 80073, 80075 (Dec. 21, 2010).
---------------------------------------------------------------------------
    A private space to express breast milk is also critical for 
nursing employees. According to a 2016 study, women who were 
provided a private space were 3.8 times as likely to maintain 
exclusive breastfeeding each month and continued breastfeeding 
1.36 months longer than women who were not provided with break 
time or a private space.\23\ Breastfeeding mothers must feel 
safe in order to let down breast milk, and a reasonable 
guarantee of privacy is a key part of that safety.\24\ If a 
nursing mother feels unsafe or emotionally distressed, her 
production of oxytocin may be inhibited, which can create a 
physiological barrier to lactation.\25\
---------------------------------------------------------------------------
    \23\Kozhimannil, supra note 10, at 6.
    \24\Morris, supra note 13, at 48.
    \25\Kathryn G. Dewey, Maternal and Fetal Stress Are Associated with 
Impaired Lactogenesis in Humans, 131 J. Nutrition 3012S, 3013S (2001); 
World Health Organization, Infant and Young Child Feeding: Model 
Chapter for Textbooks for Medical Students and Allied Health 
Professionals 11-12 (2009), https://www.ncbi.nlm.nih.gov/books/
NBK148970/.
---------------------------------------------------------------------------
    There is a strong business case for providing break time 
and space for nursing employees. Supporting the health of 
mothers and infants through breastfeeding may translate into 
less absenteeism from employees needing to take sick leave to 
care for themselves or their infants as well as lower health 
care or insurance costs.\26\ Employers may also see less 
turnover from workers who are able to maintain breastfeeding 
and employment, allowing employers to save money on turnover 
costs and retain talent.\27\ Employers may also benefit from a 
workforce that feels supported and is more satisfied and 
loyal.\28\
---------------------------------------------------------------------------
    \26\New York State Department of Health, Making it Work for 
Employers 3, https://www.breastfeedingpartners.org/images/pdf/
ForEmployersFINAL.pdf; Julie Smith-Gagen, The Association of State Law 
to Breastfeeding Practices in the US, 23 Maternal and Child Health J 
2034, 2034 (2014).
    \27\Id.
    \28\Id.
---------------------------------------------------------------------------
    The COVID-19 pandemic has had a disproportionate impact on 
women's employment as industries dominated by women have been 
hardest hit. During the first ten months of the pandemic, 
women, especially women of color, lost more jobs than men.\29\ 
Women lost 55 percent of the 9.6 million net jobs lost in 
2020.\30\ An estimated 2.1 million women left the workforce 
between January and December 2020.\31\ This includes 564,000 
Black women and 317,000 Latinas.\32\ All the jobs that were 
lost in December 2020 were women's jobs.\33\ Between February 
and April 2020, mothers of children under the age of six saw a 
nine-percentage point increase in unemployment--a 20 percent 
larger increase than unemployment growth among fathers.\34\ 
This is a critical moment to advance policies that ensure 
workers can balance employment and motherhood and return to 
work.
---------------------------------------------------------------------------
    \29\Diana Boesch and Shilpa Phadke, When Women Lose All the Jobs: 
Essential Actions for a Gender-Equitable Recovery 1 (2021), https://
www.americanprogress.org/issues/women/reports/2021/02/01/495209/women-
lose-jobs-essential-actions-gender-equitable-recovery/.
    \30\Claire Ewing-Nelson, All of the Jobs Lost in December Were 
Women's Jobs 3 (2021), https://nwlc.org/wp-content/uploads/2021/01/
December-Jobs-Day.pdf.
    \31\Id.
    \32\Id.
    \33\Id. at 1.
    \34\Liana Christin Landivar et al., Early Signs Indicate That 
COVID-19 Is Exacerbating Gender Inequality in the Labor Force, 6 
Socius: Sociological Research for a Dynamic World 1, 2 (2020), https://
journals.sagepub.com/doi/full/10.1177/2378023120947997.
---------------------------------------------------------------------------
    According to a 2014 analysis of survey data, ``[l]aws 
requiring workplaces to provide private areas and break times 
to breastfeed or pump were associated with increased 
proportions of infants who were ever breastfed and infants who 
were breastfed for 6 months or longer.''\35\ For these reasons, 
it is critical that federal employment law guarantee nursing 
employees reasonable break time and a private space to express 
breast milk at work. As Ms. Bakst testified, ``harsh workplace 
conditions for breastfeeding parents represent a fundamental 
unfairness and inequity in our legal system--and reinforce the 
stereotype that motherhood and employment are 
irreconcilable.''\36\
---------------------------------------------------------------------------
    \35\Smith-Gagen, supra note 26, at 2040.
    \36\Bakst Testimony at 17.
---------------------------------------------------------------------------

      CURRENT FEDERAL LAW HAS LIMITED COVERAGE AND ENFORCEABILITY

    Section 4207 of the Patient Protection and Affordable Care 
Act\37\ added subsection (r) to section 7 of the FLSA to 
require employers to provide: (1) reasonable break time, which 
does not need to be paid, for an employee to express milk for 
one year after a child's birth, and (2) non-bathroom space free 
from view and intrusion for nursing employees to express breast 
milk while at work.\38\ Unfortunately, gaps in the law limit 
access to these protections and leave employees unable to seek 
appropriate forms of relief in court when their employers 
violate the law.
---------------------------------------------------------------------------
    \37\Pub. L. No. 111-148, 124 Stat. 577.
    \38\29 U.S.C. Sec. 207(r).
---------------------------------------------------------------------------
    The provision providing break time for nursing mothers was 
added to section 7 of the FLSA, which generally requires 
employers to pay covered, non-exempt employees overtime 
compensation. Section 13 of the FLSA, however, includes 
provisions excluding certain employees, including teachers,\39\ 
certain nurses,\40\ certain agricultural workers,\41\ and 
certain ``white-collar'' workers,\42\ from section 7.\43\ As a 
result, employees who are exempted from section 7 pursuant to 
section 13 are excluded from 7(r) protections for nursing 
mothers. The Economic Policy Institute estimates 8.65 million 
women of childbearing age are excluded from nursing mother 
protections.\44\
---------------------------------------------------------------------------
    \39\29 U.S.C. Sec. 213(a)(1).
    \40\Id.
    \41\29 U.S.C. Sec. 213(b)(12).
    \42\29 U.S.C. Sec. 213(a)(1).
    \43\Id.
    \44\E-mail from Margaret Poydock, Policy Analyst, Economic Policy 
Institute, to House Education and Labor Committee Staff, (March 4, 
2021, 10:49 EST) (on file with staff).
---------------------------------------------------------------------------
    Current law also limits how employees can recover in court 
when their employers fail to comply with break time and space 
requirements. Under the FLSA, employers are liable to employees 
for violations of section 7, including violation of section 
7(r) break time and space requirements, and employees may 
recover for such liability in state or federal court.\45\ 
However, employers are liable for ``the amount of unpaid 
minimum wages, or the unpaid overtime compensation, as the case 
may be.''\46\ As the U.S. Department of Labor (DOL) has noted, 
``because employers are not required to compensate employees 
for break time to express breast milk, in most circumstances 
there will not be any unpaid minimum wage or overtime 
compensation associated with the failure to provide such 
breaks.''\47\
---------------------------------------------------------------------------
    \45\29 U.S.C. Sec. 216(b).
    \46\Id.
    \47\Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. 80073, 
80078 (Dec. 21, 2010).
---------------------------------------------------------------------------

 H.R. 3110 WOULD EXTEND BREAK TIME AND SPACE PROTECTIONS TO ADDITIONAL 
                                WORKERS

Extending Protections to Currently Exempt Employees

    H.R. 3110 would amend the FLSA to strike section 7(r) and 
move nursing employee break time and space provisions to a 
newly created section 18D of the FLSA. By moving these 
protections out of section 7, workers who are exempt from 
section 7 pursuant to section 13 are no longer exempt from 
break time and space protections. This amendment to the law 
would require employers in additional industries to come into 
compliance and provide break time and space protections to 
their employees, and it would ensure millions more workers have 
access to these vital protections.
    The DOL's guidance on break time protections, which is 
based on consultation with lactation experts at federal public 
health agencies, estimates nursing mothers will need two to 
three breaks during an eight-hour shift.\48\ Providing break 
time can be as simple as implementing good management and 
communication practices so that coverage can be provided when 
employees need to take breaks, similar to when employees need 
to take meal, rest, or restroom breaks. Supervisors can also 
work with breastfeeding employees to develop schedules that 
meet their needs. For example, for teachers, agricultural 
workers, airline employees, and transportation employees, this 
could mean taking scheduled breaks that are planned in 
advance.\49\
---------------------------------------------------------------------------
    \48\Id. at 80075.
    \49\New York State Department Of Health, supra note 26, at 9-13.
---------------------------------------------------------------------------
    Compliance with private space requirements is also 
achievable for industries that would be newly subject to break 
time and space requirements under H.R. 3110. Under the DOL's 
guidance, where it is not practicable to provide a private 
room, employers can comply by creating a space with partitions 
or curtains, a place to sit, and a flat surface.\50\ An 
employer is not required to maintain a permanent space 
dedicated to nursing mothers.\51\ As amended, H.R. 3110 would 
require the U.S. Secretary of Labor (Secretary) to issue 
guidance with specific examples of how employers can comply 
based on current guidance for providing break time and space 
from OWH. The Secretary should ensure this guidance includes a 
non-exhaustive list of specific examples based on OWH guidance 
on how employers of newly covered employees, including 
agriculture employees, transportation employees, airline 
employees, nurses, and teachers, can comply with the place 
requirements under the law.
---------------------------------------------------------------------------
    \50\Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. at 
80075.
    \51\Id. at 80076.
---------------------------------------------------------------------------
    For example, according to OWH, employers of transportation 
employees, which could include delivery drivers and transit 
workers, can provide privacy shields to be used in the cab of a 
vehicle or partner with local businesses along a transportation 
route to provide employees with a private, non-bathroom 
space.\52\ OWH also highlights how the TriMet transportation 
company in Oregon has accommodated bus drivers by creating 
portable lactation spaces located along their bus drivers' 
routes.\53\ For employers of agriculture workers, OWH states 
that pop-up privacy tents, the cab of farming equipment or 
company vehicles with covered windows, or small buildings in 
the field are a workable solution.\54\ For employers of medical 
professionals, such as nurses, OWH suggests a private patient 
room, portion of a lounge area, storage area, or conference 
room.\55\ For teachers, OWH states that ``commitment by school 
administration to provide a sub or floater teacher for 
employees who are breastfeeding is one of the keys to success'' 
and recommends employers make use of the school's nurse's 
office, part of a conference room, or a teacher resource 
room.\56\
---------------------------------------------------------------------------
    \52\Office on Women's Health, U.S. Department of Health and Human 
Services, Supporting Nursing Moms At Work Solutions For Transportation 
1-2, https://owh-wh-d9-dev.s3.amazonaws.com/s3fs-public/documents/
snm_transportation_solutions.pdf (last visited June 11, 2021).
    \53\Office on Women's Health, U.S. Department of Health and Human 
Services, Transportation, https://www.womenshealth.gov/supporting-
nursing-moms-work/lactation-break-time-and-space-all-industries/
transportation (last visited June 11, 2021).
    \54\Office on Women's Health, U.S. Department of Health and Human 
Services, Outdoor Job Sites, https://www.womenshealth.gov/supporting-
nursing-moms-work/lactation-break-time-and-space-all-industries/
outdoor-job-sites (last visited June 11, 2021); Office on Women's 
Health, U.S. Department of Health and Human Services, Supporting 
Nursing Moms At Work Solutions For Agriculture 1-2, https://owh-wh-d9-
dev.s3.amazonaws.com/s3fs-public/documents/
snm_agriculture_solutions.pdf (last visited June 11, 2021).
    \55\Office on Women's Health, U.S. Department of Health and Human 
Services, Health Care, https://www.womenshealth.gov/supporting-nursing-
moms-work/lactation-break-time-and-space-all-industries/health-care 
(last visited June 11, 2021).
    \56\Office on Women's Health, U.S. Department of Health and Human 
Services, Education, https://www.womenshealth.gov/supporting-nursing-
moms-work/lactation-break-time-and-space-all-industries/education (last 
visited June 11, 2021).
---------------------------------------------------------------------------
    At least 15 states and the District of Columbia have 
standalone laws requiring break time and space for 
breastfeeding workers to pump that are comparable to existing 
federal requirements.\57\ Of these state-level laws, only one 
law has industry or occupation-specific carve outs.\58\ This 
means that in 14 states and the District of Columbia, employers 
who would be newly subject to federal break time and space 
requirements are already subject to similar state-level 
requirements. For example, agricultural employers in 
California, where one-third to one-half of farmworkers in the 
U.S. reside,\59\ are already required to provide break time and 
space for nursing employees. In the city of Los Angeles, 
municipal transportation employees can use lactation space at 
any fire station along their route.\60\
---------------------------------------------------------------------------
    \57\Arkansas (Ark. Code Ann. Sec. 11-5-116); California (Cal. Lab. 
Code Sec. Sec. 1030-31); Colorado (Colo. Rev. Stat. Sec. 8-13.5-104); 
Connecticut (Conn. Gen. Stat. Sec. 31-40w); Georgia (Ga. Code Ann. 
Sec. 34-1-6); Hawaii (Haw. Rev. Stat. Sec. 378-92); Illinois (802 Ill. 
Comp. Stat. Sec. Sec. 260/10, 15); Maine (Me. Rev. Stat. Ann. tit. 26, 
Sec. 604); Minnesota (Minn. Stat. Sec. 181.939); New Mexico (N.M. Stat. 
Ann. Sec. 28-20-2); New York (N.Y. Lab. Law Sec. 206-c); Oregon (OR. 
Rev. Stat. Sec. 653.077); Rhode Island (R.I. Gen. Laws Sec. 23-13.2-1); 
South Carolina (S.C. Code Ann. Sec. 41-1-130); Tennessee (Tenn. Code. 
Ann. Sec. 50-1-305); Vermont (21 V.S.A. Sec. 305.21); and Washington, 
D.C. (D.C. Code Ann. Sec. 2-1402.82.).
    \58\Or. Rev. Stat. Sec. Sec. 653.075, 653.077, 653.256 (2007).
    \59\Farmworkers Justice, Who Are Farmworkers?, https://
www.farmworkerjustice.org/about-farmworker-justice/who-we-serve/ (last 
visited June 11, 2021).
    \60\Office on Women's Health, U.S. Department of Health and Human 
Services, Transportation, https://www.womenshealth.gov/supporting-
nursing-moms-work/lactation-break-time-and-space-all-industries/
transportation (last visited June 11, 2021).
---------------------------------------------------------------------------
    Given that many industries have already figured out how to 
comply with state-level requirements and employers will have 
guidance with specific workable solutions, there is no 
compelling reason to continue to deny protections to exempted 
employees. While the legislative history of break time and 
space provisions is scant, there is nothing in the record that 
suggests that workers who are currently exempt and would be 
newly covered under H.R. 3110 were excluded because of 
compliance concerns. Furthermore, in male-dominated industries, 
women are more likely to face retaliation or hostility for 
their nursing needs.\61\ As many currently excluded industries, 
such as transportation and agriculture, are male-dominated, 
providing these employees with break time and space protections 
is critical.
---------------------------------------------------------------------------
    \61\Morris, supra note 13, at 17.
---------------------------------------------------------------------------

Lowering the Employee Threshold for the Undue Hardship Exemption

    Under current law, employers with fewer than 50 employees 
are exempt from break time and space requirements ``if such 
requirements would impose an undue hardship by causing the 
employer significant difficulty or expense when considered in 
relation to the size, financial resources, nature, or structure 
of the employer's business.''\62\ Nothing in the record 
supports the need to maintain the current undue hardship 
threshold at this level. Hawaii sets its undue hardship 
threshold at employers with fewer than 20 employees,\63\ Oregon 
sets its threshold at 10 or fewer employees (break time 
only),\64\ and New Mexico,\65\ New York,\66\ and Maine\67\ 
state laws do not have an undue burden exemption. As amended, 
H.R. 3110 changes the current undue hardship exemption to apply 
to employers with fewer than 25 employees. This will help 
ensure more women have the right to break time and space. 
Additionally, the new required guidance (discussed above) will 
help ensure that workplaces that mistakenly used the undue 
hardship exemption, and thus were improperly denying their 
workers protections, will have examples for compliance.
---------------------------------------------------------------------------
    \62\29 U.S.C. Sec. 207(r)(3).
    \63\Haw. Rev. Stat. Sec. 378-92 (2013).
    \64\Or. Rev. Stat. Sec. Sec. 653.075, 653.077, 653.256 (2007).
    \65\N.M. Stat. Ann. Sec. 28-20-2 (2007).
    \66\N.Y. Labor Law Sec. 206-c (2007).
    \67\Me. Rev. Stat. Ann. tit. 26 Sec. 604 (2009).
---------------------------------------------------------------------------

Clarifying Situations Under Which Break Time and Space Requirements 
        Apply

    As amended, H.R. 3110 includes key clarifications regarding 
the application of break time and space protections to specific 
breastfeeding situations. These include situations in which the 
employee gives birth but does not retain legal custody of the 
child or following a stillbirth or the employee does not give 
birth to the child but begins to provide breast milk for a 
nursing child. This includes, but is not limited to, situations 
in which the child is adopted, in which case both the 
biological and adoptive parents would be covered if they need 
to express breastmilk, and situations in which the employee is 
nursing for purposes other than feeding her own child, such as 
for the purposes of breast milk donation.
    For workers who may have lost a child due to stillbirth or 
who have given up their child for adoption, space and time to 
pump breast milk are still important for their health and 
comfort, even if they no longer have the child with them. 
Inadequate breast milk expression post-partum can lead to pain, 
engorgement, and, in some, cases, mastitis, which is infection 
of the breast.\68\ For workers who may no longer physically 
have the child, expressing breast milk can relieve the 
discomfort of engorgement. They may also want to donate their 
breast milk as a way to help them with their grief over a lost 
child. Hospital Neonatal Intensive Care Units (NICUs) across 
the country accept donated breast milk as many mothers to 
premature babies are not able to produce milk.\69\
---------------------------------------------------------------------------
    \68\Melodie M. Blackmon et al., Acute Mastitis 4 (2021).
    \69\American Academy of Pediatrics, Donor Human Milk for the High-
Risk Infant: Preparation, Safety, and Usage Options in the United 
States, 139(1) Peds. 2 (2017), https://pediatrics.aappublications.org/
content/pediatrics/139/1/e20163440.full.pdf.
---------------------------------------------------------------------------

Extending Break Time and Space Protections to Two Years

    H.R. 3110, as amended, would extend break time and space 
protections to workers to two years after the employee gives 
birth or begins nursing a child. The American Academy of 
Pediatrics policy guidance on breastfeeding recommends that 
children be exclusively breastfed for the first six months of 
life.\70\ After the six-month period, appropriate foods can be 
introduced with ``continuation of breastfeeding for 1 year or 
longer as mutually desired by mother and infant.''\71\ The 
American Academy of Family Physicians also supports a longer 
duration of breastfeeding, noting that ``best outcomes can be 
achieved when breastfeeding continues until the child is two 
years of age.''\72\
---------------------------------------------------------------------------
    \70\American Academy of Pediatrics, Breastfeeding and the Use of 
Human Milk, 129(3) Peds. e827, e832 (2012), https://
pediatrics.aappublications.org/content/pediatrics/129/3/e827.full.pdf.
    \71\Id. at e832.
    \72\AAFP Releases Position Paper on Breastfeeding, Am. Fam. 
Physician (2014), https://www.aafp.org/afp/2015/0101/
afp20150101p56.pdf.
---------------------------------------------------------------------------

H.R. 3110 WOULD ENSURE NURSING EMPLOYEES CAN RECOVER APPROPRIATE RELIEF 
                                IN COURT

    H.R. 3110, as amended, would subject employers that violate 
break time and space requirements to legal and equitable relief 
``including without limitation employment, reinstatement, 
promotion, and the payment of wages lost and an additional 
equal amount as liquidated damages.''\73\ Evidence suggests 
that strengthening enforcement mechanisms will improve 
breastfeeding outcomes. A 2014 study of breastfeeding-support 
laws found that infants in states with workplace pumping laws 
with enforcement provisions were 225 percent more likely to 
ever breastfeed and 102 percent more likely to breastfeed for 
at least six months.\74\
---------------------------------------------------------------------------
    \73\29 U.S.C. Sec.  216(b).
    \74\Smith-Gagen, supra note 26, at 2039.
---------------------------------------------------------------------------
    During the 2021 Joint Subcommittee Hearing, Minority 
witness Camille Olson questioned the appropriateness of 
expanding the types of relief available for workers for 
violations of break time and space requirements in courts. Ms. 
Olson argued that ``[e]mployees currently may bring a private 
right of action (including the right to bring a collective 
action on behalf of themselves and others similarly situated) 
when their employer's violation of Section 7(r) results in 
unpaid wages or when they suffer retaliation for complaining of 
a violation of Section 7(r)'s requirements.''\75\ This analysis 
is flawed for several reasons.
---------------------------------------------------------------------------
    \75\Fighting for Fairness: Examining Legislation to Confront 
Workplace Discrimination Before H. Subcomm. on Civil Rights and Human 
Servs. & H. Subcomm. on Workforce Prots. of the H. Comm. on Educ. and 
Labor, 117th Cong. (2021) (written testimony of Camille A. Olson, 
Partner, Seyfarth Shaw LLP, at 38) [Hereinafter Olson Testimony].
---------------------------------------------------------------------------
    First, as discussed above, recovery only for unpaid minimum 
wages or overtime compensation renders employees unable to 
enforce current break time and space requirements in a private 
right of action. As a court surmised in an opinion dismissing 
such a case, ``there does not appear to be a manner of 
enforcing the express breast milk provisions.''\76\
---------------------------------------------------------------------------
    \76\Salz v. Casey's Mktg. Co., No. 1 l-CV-3055-DEO, 2012 WL 
2952998, at *7 (N.D. Iowa July 19, 2012).
---------------------------------------------------------------------------
    Second, even if unpaid minimum wage or overtime 
compensation were recoverable, lost wages are often an 
inadequate or inappropriate form of relief for certain economic 
harms. For instance, an employer's refusal to allow for breaks 
could leave an employee unable to both remain employed and 
continue breastfeeding, forcing the employee to resign. Or, an 
employer could fire an employee for taking breaks to express 
milk or for informing her employer she intends to take such 
breaks. In a report from the Center for WorkLife Law, emergency 
room nurse Barbara shared how she was forced to leave her job 
after six years of service after being repeatedly bullied and 
denied adequate break time and space to pump.\77\ Although this 
job loss could lead to significant economic harm, especially 
for low-wage workers, current law does not allow employees to 
seek appropriate relief in court to make them whole. H.R. 3110 
would allow workers to seek legal and equitable relief for 
economic harm, including backpay, front pay, liquidated 
damages, and reinstatement.
---------------------------------------------------------------------------
    \77\Morris, supra note 13, at 7.
---------------------------------------------------------------------------
    Allowing for legal and equitable relief under H.R. 3110 
will also allow nursing employees to recover for harm to their 
physical and mental health. Employees who are denied reasonable 
break time may experience pain, engorgement, leakage, clogged 
ducts, or a potentially dangerous infection that may require 
medical intervention, medication, hospitalization, or, in the 
worst cases, surgery.\78\ In a report from the Center for 
WorkLife Law, former New York City police officer Simone Teagle 
shared her story of being denied the ability to pump during her 
entire nine-hour shift.\79\ Officer Teagle noted, ``I had blood 
in my milk from waiting so long'' and ``a fever, aches and 
pains, and other flu-like symptoms.'' She also stated she had 
``super-painful'' mastitis, ``but I had to keep working.''\80\ 
H.R. 3110 would allow workers like Simone to seek compensatory 
damages, including for medical costs or emotional distress, and 
punitive damages for this type of harm.
---------------------------------------------------------------------------
    \78\Blackmon, supra note xx, at 4.
    \79\Morris, supra note 13, at 7.
    \80\Id.
---------------------------------------------------------------------------
    Third, while the FLSA's current anti-retaliation provisions 
are critical, they are not enough. An employee can, in fact, 
seek legal and equitable relief if her employer discharges or 
discriminates against her for filing a complaint regarding 
break time and space protections.\81\ However, the employee 
must be aware of her rights, actually make a complaint, and be 
retaliated against for such complaint. If an employee is merely 
fired for taking or seeking to take breaks, she cannot recover 
under the FLSA's anti-retaliation provisions. A report from the 
Center for WorkLife Law includes the story of Marina, a 
taqueria cashier whose employer forbid her from returning to 
work until she weaned her infant.\82\ She was fired after 
telling her employer that she needed to work. With four 
children to support, Marina was unable to find another night 
job and had no child care during the day. She was forced to 
take on loans and rely on charitable services for food. Unless 
Marina was aware of her rights under current law and made a 
complaint before she was fired, she would not be allowed to 
maintain a retaliation complaint. H.R. 3110 ensures workers 
like Marina can seek appropriate relief under similar 
circumstances.
---------------------------------------------------------------------------
    \81\29 U.S.C. Sec.  215(a)(3).
    \82\Morris, supra note 13, at 7.
---------------------------------------------------------------------------
    Ms. Olson argued at the 2021 Joint Subcommittee Hearing 
that providing workers with appropriate types of relief under 
the law would lead to the proliferation of individual and 
collective lawsuits with delayed recovery for workers.\83\ 
Evidence from state-level laws does not support this argument. 
In the states with standalone break time and space laws that 
allow employees to recover appropriate legal and equitable 
remedies in court, such provisions serve as a strong deterrent 
to violations of the protections, and there is very limited 
litigation. Hawaii, Minnesota, Vermont, and the District of 
Columbia have standalone break time and space laws that are 
comparable to federal requirements yet allow an employee to 
seek legal and equitable remedies in court. Only six cases have 
been filed in these states: three in Minnesota since its law 
went into effect in 2014 and three in the District of Columbia 
since its law went into effect in 2007.\84\ Legal experts 
believe that one reason why litigation rates are so low in 
these jurisdictions is that employers have been more likely to 
comply to avoid legal liability.\85\
---------------------------------------------------------------------------
    \83\Olson Testimony at 38.
    \84\Liz Morris and Jessica Lee, Compliance or Complaints? The 
Impact of Private Enforceability of Lactation Break Time and Space Laws 
5 (2021), https://worklifelaw.org/wp-content/uploads/2021/06/
Compliance-or-Complaints-Lactation-Litigation-Report.pdf.
    \85\Id. at 6.
---------------------------------------------------------------------------
    It is important to note that allowing for compensatory and 
punitive damages does not mean damages will be unlimited. While 
circuit courts are split on whether punitive damages are 
recoverable under current provisions of the FLSA that provide 
for legal relief, courts do not generally award unjustifiable 
or excessive damages.\86\ Furthermore, under H.R. 3110, relief 
would only be provided ``as may be appropriate to effectuate 
the purposes of section'' 18D.\87\ This serves as a guardrail 
against excessive punitive damages.\88\
---------------------------------------------------------------------------
    \86\ Carol Abdelmesseh and Deanne M. DiBlasi, Why Punitive Damages 
Should be Awarded for Retaliatory Discharge Under the Fair Labor 
Standards Act, 21 Hofstra Labor And Employment Law J. 715, 734 (2004).
    \87\ 29 U.S.C. Sec.  216(b).
    \88\ Abdelmesseh and DiBlasi, supra note 86, at 734.
---------------------------------------------------------------------------
    At the 2021 Joint Subcommittee Hearing, Ms. Olson expressed 
concern with employers being held accountable for what she 
deemed ``technical violations'' that do not result in monetary 
damages, such as ``a claim that the provided space did not 
properly shield the employee from view.''\89\ However, failing 
to provide a space shielded from view and free from intrusion 
is not merely a technical violation; this protection is key for 
nursing workers. Privacy and cleanliness are vital to 
supporting breastfeeding workers. Letting down milk to pump or 
breastfeed is a physiological process that requires the mother 
to feel safe.\90\ Unsanitary conditions or non-private spaces, 
such as rooms with glass windows and no curtains, or rooms with 
no lock or privacy sign, can prevent a breastfeeding mother 
from being able to express breast milk.\91\ A nursing employee 
who feels unsafe or emotionally distressed may experience 
inhibited production of oxytocin, creating a physiological 
barrier to lactation.\92\
---------------------------------------------------------------------------
    \89\ Olson Testimony at 34.
    \90\Dewey, supra note 25, at 3013S; World Health Organization, 
supra note 25, at 11-12.
    \91\Id.
    \92\Id.
---------------------------------------------------------------------------
    Shielding nursing workers from view is easy to accomplish 
and inexpensive. It can be as simple as taping butcher paper 
over windows, using a curtain, setting up a pop-up tent, or 
placing visors in a vehicle. There is no requirement under 
current law or H.R. 3110 that a room with four walls be 
provided. It is also relatively simple to ensure that someone 
has been provided a space that is free from intrusion. An 
employer could put a handwritten sign on the door instructing 
others not to enter or install a simple $10 sliding lock.
    It is highly unlikely that an employer would be sued for a 
one-time intrusion. It is true that, even if proper steps have 
been taken, a one-time intrusion from an inconsiderate or 
confused coworker is possible. However, it is highly unlikely 
that such a situation alone would lead to a lawsuit. According 
to the Center for WorkLife Law:

          Irregular violations that are remedied without delay, 
        such as an accidental intrusion, have not led to 
        litigation. This is likely due to a lack of desire on 
        the part of employees to sue their current employer who 
        acted in good faith, but also because attorneys are 
        unlikely to take cases with no actual economic damages, 
        especially when the employer acted reasonably.\93\
---------------------------------------------------------------------------
    \93\Morris and Lee, supra note 84, at 6.

    None of the six state-level cases filed were filed simply 
because the nursing worker had been interrupted or intruded 
upon once or twice. In all six of the cases brought at the 
state level, plaintiffs alleged actual economic damages, such 
as job loss.\94\
---------------------------------------------------------------------------
    \94\Id. at 3.
---------------------------------------------------------------------------
    Finally, Ms. Olson argued at the 2021 Joint Subcommittee 
Hearing that the DOL was ``better suited to quickly and 
sufficiently enforce such technical violations of Section 
7(r).''\95\ While the DOL's Wage and Hour Division (WHD) plays 
a critical role in enforcing the FLSA, the agency is 
responsible for enforcing provisions of more than a dozen 
statutes and executive orders for workers in more than 10 
million workplaces.\96\ As the current Administration has 
stated, ``WHD cannot intervene in all the cases where it is 
needed.''\97\ Congress long ago recognized that employees need 
the ability to go to court to enforce key workplace rights 
under the FLSA. Furthermore, as noted above, the violations 
mentioned by Ms. Olson are not merely ``technical.''
---------------------------------------------------------------------------
    \95\Olson Testimony at 34.
    \96\U.S. Department of Labor, FY 2022 Congressional Budget 
Justification Wage and Hour Division 10 (2021), https://www.dol.gov/
sites/dolgov/files/general/budget/2022/CBJ-2022-V2-09.pdf.
    \97\Id. at 11.
---------------------------------------------------------------------------
    Under H.R. 3110, as amended, before filing suit against an 
employer for violating place requirements, an employee must 
have informed her employer that space was inadequate and 
provided the employer with 10 days to comply with place 
requirements. This provision would not prohibit employees from 
recovering for harm, nor does this provision provide employers 
with a general ``grace period'' for compliance. The employer 
must be in compliance as soon as the employee needs a place. 
This provision is only operable where the employee seeks to 
file suit in court against the employer for place requirement 
violations. In informing the employer that space is inadequate, 
the employee does not need to be well-versed in the details of 
the law, quote its provisions, or send a formal letter. 
Furthermore, this requirement does not apply if the employee 
has been discharged, including constructively discharged, for 
asking for a space or if the employer has indicated they have 
no intention of complying. Nor would this provision prevent the 
DOL from exercising its existing enforcement authority or a 
state or local employment or labor agency from enforcing its 
respective laws or ordinances.
    In contrast, the Foxx ANS proposed to hold the employer 
harmless for violating both break time and place requirements 
if the employer receives notice they are in violation and 
violations are fixed within 30 days. Because this provision in 
the Foxx ANS was not tied to litigation, it would have 
effectively provided employers with a 30-day grace period 
before they had to comply with both break time and space 
requirements. Employers do not need 30 days to comply with 
these protections and forcing a nursing employee to wait this 
period of time could cause her to lose her milk supply.\98\ 
Additionally, this provision would have impacted the current 
limited enforcement of the law. Under current law: ``If an 
employer refuses to comply with the requirements of section 
7(r), however, the Department may seek injunctive relief in 
federal district court, and may obtain reinstatement and lost 
wages for the employee.''\99\ Because the 30-day delay 
provision in the Foxx ANS was not tied to private litigation, 
the Secretary would have been subject to the delay before 
enforcement. This would, in effect, have rolled back current 
law.
---------------------------------------------------------------------------
    \98\WIC Breastfeeding Support, U.S. Department of Agriculture, Low 
Milk Supply, https://wicbreastfeeding.fns.usda.gov/low-milk-supply 
(last visited Jun. 9, 2021).
    \99\29 U.S.C. Sec.  217; Reasonable Break Time for Nursing Mothers, 
75 Fed. Reg. at 80078.
---------------------------------------------------------------------------
    In addition, the 30-day delay provision in the Foxx ANS 
could have resulted in an employer escaping liability for 
discharged employees. For example, under the Foxx ANS, a 
nursing employee could have asked for break time and space on 
June 1, been fired on June 2, and if the employer started 
making a space available for other employees before July, the 
employer would not have been liable for harm to the fired 
employee. Similarly, under the Foxx ANS, the nursing employee 
could have asked for break time and space on June 1, and the 
employer could have told her ``no'' on June 2. The nursing 
worker could have made the hard decision that she could not 
maintain breastfeeding and keep that job, forcing to her 
resign. If the employer started making a space available for 
other employees before July, the employer would have been off 
the hook for the employee who was constructively discharged. 
These are terrible results that would have left nursing workers 
worse off.
    H.R. 3110 makes the expansion of the types of relief 
recoverable by employees in court effective upon enactment for 
employers who already are subject to break time and space 
requirements and have been for more than ten years. Expansion 
of protections to currently excluded employees does not take 
effect until 120 days after enactment.

   H.R. 3110 MAKES ADDITIONAL KEY CLARIFICATIONS TO SUPPORT NURSING 
                               EMPLOYEES

    H.R. 3110, as amended, clarifies that if a worker is not 
completely relieved of duty during break time, such time is 
considered compensable ``hours worked'' used to determine the 
amount of pay due to an employee under the FLSA's minimum wage 
and overtime requirements.\100\ This clarification is 
consistent with current regulations and guidance.\101\ Current 
guidance from the DOL regarding break time for nursing mothers 
states: ``The FLSA's general requirement that the employee must 
be completely relieved from duty applies; if a nursing employee 
is not completely relieved from duty during a break to express 
breast milk, the time must be compensated as work time.''\102\
---------------------------------------------------------------------------
    \100\``The Act requires that employees must receive at least the 
minimum wage and may not be employed for more than 40 hours in a week 
without receiving at least one and one-half times their regular rates 
of pay for the overtime hours. The amount employees should receive 
cannot be determined without knowing the number of hours worked.'' U.S. 
Department of Labor Wage and Hour Division, Fact Sheet #22: Hours 
Worked Under the Fair Labor Standards Act (FLSA) (2008), https://
www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs22.pdf.
    \101\``Periods during which an employee is completely relieved from 
duty and which are long enough to enable him to use the time 
effectively for his own purposes are not hours worked.'' 29 C.F.R. 
Sec. 785.16; ``The employee must be completely relieved from duty for 
the purposes of eating regular meals. Ordinarily 30 minutes or more is 
long enough for a bona fide meal period. A shorter period may be long 
enough under special conditions. The employee is not relieved if he is 
required to perform any duties, whether active or inactive, while 
eating.'' 29 C.F.R. Sec. 785.19.
    \102\Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. at 
80075.
---------------------------------------------------------------------------
    The Foxx ANS asserted that time that an employee was not 
relieved of duty was considered hours worked, and thus 
compensable, ``only to the extent of the time spent on such 
activities.'' This provision could have required an employer to 
ascertain exactly how much time during a nursing employee's 
pumping break she actively pumped breast milk, which is a 
grievous violation of the nursing employee's privacy. If a 
worker is worried about her boss monitoring her activities 
during her pumping break, she may not be able to produce breast 
milk.
    H.R. 3110, as amended, makes clear that if other federal, 
state, or local laws require that break time be paid, an 
employer must compensate an employee for such break time. 
Guidance from the DOL in 2010 highlights how language stating 
break time for nursing mothers need not be paid interacts with 
other regulations around break time under the FLSA:

          [I]f the employer permits short breaks, usually 20 
        minutes or less, the time must be counted as hours 
        worked when determining if the FLSA requirements for 
        payment of minimum wage and/or overtime have been 
        satisfied. See 29 CFR 785.18. Where an employer already 
        provides paid breaks, an employee who uses that break 
        time to express milk must be paid in the same way that 
        other employees are compensated for break time.
          Additional time used beyond the authorized paid break 
        time could be uncompensated. For example, if an 
        employer provides a 20 minute paid break and a nursing 
        employee uses that time to express milk and takes a 
        total of 25 minutes for this purpose, the five minutes 
        in excess of the paid break time does not have to be 
        compensated.\103\
---------------------------------------------------------------------------
    \103\Id. at 80074-75.

    H.R. 3110, as amended, includes a provision to ensure that 
nothing in the bill excuses noncompliance with other federal or 
state laws or municipal ordinances that provide greater break 
time or space protections. The FLSA generally establishes 
baseline wage and hour protections. Break time and space 
protections in the FLSA are baseline protections nursing 
workers need to balance their nursing needs and employment. 
Other federal, state, or local laws may build on those baseline 
protections or allow workers to negotiate with their employers 
to put in place higher workplace standards. For example, Title 
VII of the Civil Rights Act may confer certain rights onto 
pregnant or nursing employees.\104\ This bill makes clear such 
protections remain applicable.
---------------------------------------------------------------------------
    \104\42 U.S.C. Sec.  2000e; 29 CFR Sec. 1604.10(b) (1973).
---------------------------------------------------------------------------

                               CONCLUSION

    By expanding access to enforceable break time and space 
protections for nursing employees, H.R. 3110 will support and 
promote the health and well-being of new mothers and infants.

                      Section-by-Section Analysis


Section 1. Short title

    This section specifies that the title of the bill may be 
cited as the Providing Urgent Maternal Protections for Nursing 
Mothers Act.

Section 2. Breastfeeding accommodations in the workplace

    Section 2(a) amends the Fair Labor Standards Act of 1938 by 
striking section 7(r) and moving the provisions for break time 
and space for nursing mothers to a new section 18D. By moving 
these protections out of section 7, workers who are exempt from 
section 7 pursuant to other FLSA provisions (e.g., agricultural 
employees, airline employees, and certain ``white collar'' 
employees) are no longer exempt from break time and space 
protections.
    The new section 18D includes the following provisions that 
are already in existing law:
           Employers are required to provide a 
        breastfeeding employee with reasonable break time and 
        non-bathroom space free from intrusion and view to 
        express breast milk as needed.
           Employers are not required to compensate an 
        employee for such break time.
           Nothing in this section preempts state laws 
        that provide greater protections.
    The new section 18D adds the following new provisions and 
changes:
           Changes the duration of the protections from 
        one year after the child's birth to two years after the 
        employee gives birth or begins providing breast milk 
        for a nursing child.
           Clarifies that if other federal, state, or 
        local laws require that such break time be paid, an 
        employer must compensate an employee for such break 
        time.
           Clarifies that if an employee is not 
        completely relieved of duty during break time, such 
        time is considered ``hours worked'' and thus 
        compensable.
           Adds that nothing in this section excuses 
        noncompliance with other federal or state laws or 
        municipal ordinances that provide greater break time or 
        space protections.
           Requires employees to inform their employers 
        about inadequate space 10 days before filing suit for 
        violating place requirements.
           Changes the current undue hardship exemption 
        to apply to employers with fewer than 25 employees 
        rather than employers with fewer than 50 employees.
    Section 2(a) also adds that a violation of the new section 
18D is a prohibited act under the FLSA.
    Section 2(b) amends the FLSA to make employers who violate 
break time and space protections for nursing mothers liable for 
legal and equitable relief as appropriate.
    Section 2(c) requires the U.S. Secretary of Labor to issue 
guidance with specific examples of how to comply with the break 
time and space protections based on current guidance for 
providing break time and space from the Department of Health 
and Human Services (HHS) Office of Women's Health (OWH).

Section 3. Effective date

    This section states that amendments made under section 2(a) 
relating to extending break time and space protections to 
express breast milk in the workplace shall take effect 120 days 
after the date of enactment of the Act and that amendments 
under section 2(b) relating to remedies shall take effect on 
the date of enactment of the Act.

                       Explanation of Amendments

    The amendments, including the amendment in the nature of a 
substitute, are explained in the descriptive portions of this 
report.

              Application of Law to the Legislative Branch

    Pursuant to section 102(b)(3) of the Congressional 
Accountability Act of 1995, Pub. L. No. 104-1, H.R. 3110, as 
amended, applies for the first 120 days after enactment to 
terms and conditions of employment within the legislative 
branch by amending the FLSA.

                       Unfunded Mandate Statement

    Pursuant to Section 423 of the Congressional Budget and 
Impoundment Control Act (as amended by Section 101(a)(2) of the 
Unfunded Mandates Reform Act, Pub. L. No. 104-4), the Committee 
adopts as its own the estimate of federal mandates regarding 
H.R. 3110, as amended, prepared by the Director of the 
Congressional Budget Office.

                           Earmark Statement

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 3110 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as described in clauses 9(e), 9(f), and 9(g) of rule 
XXI.

                            Roll Call Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 3110:



	    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
	    
	    

             Statement of Performance Goals and Objectives

    Pursuant to clause (3)(c)(4) of rule XIII of the Rules of 
the House of Representatives, the goals of H.R. 3110 are to 
improve breastfeeding outcomes in the United States and 
facilitate labor force participation by nursing workers.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII of the Rules of the 
House of Representatives, the Committee states that no 
provision of H.R. 3110 establishes or reauthorizes a program of 
the Federal Government known to be duplicative of another 
federal program, a program that was included in any report from 
the Government Accountability Office to Congress pursuant to 
section 21 of Pub. L. No. 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                                Hearings

    Pursuant to clause 3(c)(6) of rule XIII of the Rules of the 
House of Representatives, the Committee on Education and 
Labor's Subcommittee on Civil Rights and Human Services and 
Subcommittee on Workforce Protections held a joint hearing on 
March 18, 2021, entitled ``Still Fighting for Fairness: 
Examining Legislation to Confront Workplace Discrimination,'' 
which was used to develop H.R. 3110, among other bills. The 
Joint Subcommittee heard testimony relevant to H.R. 3110 from 
Dina Bakst, Co-Founder and Co-President, A Better Balance: The 
Work & Family Legal Center, New York, NY, and Camille A. Olson, 
Partner, Seyfarth Shaw LLP, Chicago, IL.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the descriptive portions of this report.

               New Budget Authority and CBO Cost Estimate

    Pursuant to clause 3(c)(2) of rule XIII of the Rules of the 
House of Representatives and section 308(a) of the 
Congressional Budget and Impoundment Control Act of 1974, and 
pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives and section 402 of the Congressional 
Budget and Impoundment Control Act of 1974, the Committee has 
received the following estimate for H.R. 3110 from the Director 
of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, July 1, 2021.
Hon. Robert C. ``Bobby'' Scott,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3110, the PUMP for 
Nursing Mothers Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Meredith 
Decker.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

    
    
    	[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    	
    	
    

    Bill summary: H.R. 3110 would amend the Fair Labor 
Standards Act (FLSA) to require more employers to offer 
employees who are nursing reasonable break times and to provide 
them with private lactation areas, other than restrooms, for 
two years after the birth of a child. The bill would extend 
those accommodations to groups of workers who are not now 
covered and would require the Department of Labor (DOL) to 
issue new guidance for compliance.
    Section 207 of the FLSA requires employers to provide 
eligible employees (mostly hourly workers who are covered by 
the overtime rules contained in that section) unpaid break time 
and private lactation areas, other than restrooms, for one year 
after the birth of a child. Employers of fewer than 50 
employees can receive an exemption if they demonstrate that 
compliance imposes a hardship. All federal agencies must meet 
similar standards.
    H.R. 3110 would expand the current requirements to cover 
all workers who are nursing: managers and executives; 
professional, seasonal, and agricultural workers; and any 
others not currently eligible for accommodations. The bill also 
would extend the duration of the requirement by one year and 
lower the threshold for an exemption to employers with fewer 
than 25 employees.
    Federal costs: CBO estimates that the requirement for DOL 
to issue guidance would have an insignificant cost; any 
spending would be subject to the availability of appropriated 
funds.
    Mandates: H.R. 3110 contains intergovernmental and private-
sector mandates as defined in the Unfunded Mandates Reform Act 
(UMRA). By expanding requirements related to lactation 
accommodations in the workplace, the bill would impose a 
mandate on all employers under FLSA jurisdiction. However, CBO 
estimates, the aggregate cost of complying with the mandates 
would fall below the annual thresholds established in UMRA for 
intergovernmental and private-sector mandates ($85 million and 
$170 million in 2021, respectively, adjusted annually for 
inflation).
    Currently, 20 states and the District of Columbia have laws 
that require the same or greater accommodations for employees 
who are nursing. Thus, only employers in 30 states with no or 
more relaxed laws would need to invest additional resources to 
comply with the bill. The cost of the mandates would be for 
employers in the private and public sector, including employers 
no longer eligible for the hardship exemption, to provide 
accommodations to more employees and for a longer time.
    Using census data and information from the Bureau of Labor 
Statistics, the Department of Health and Human Services (HHS), 
and the National Institutes of Health, CBO estimates that 
approximately 14,000 private employers would need to provide 
additional accommodations or request an exemption under the 
bill. CBO estimates that 2,000 employers would lose the 
hardship exemption because they have 25 or more employees.
    Guidance from HHS lists several inexpensive methods to 
provide lactation areas, including sharing spaces among 
employers; using existing offices, closets, or storage areas; 
screening off areas in larger spaces; and providing single-
person pop-up tents.
    CBO estimates that for the aggregate cost of the mandates 
to exceed the threshold for the private-sector mandate, the 
cost per private-sector employer, on average, would need to be 
between about $12,000 (if all covered employers provided 
accommodations) and $85,000 (if all employers with fewer than 
25 employees were exempt). Given the costs of the methods 
listed by HHS, CBO expects that the aggregate cost would fall 
below the threshold for private-sector mandates.
    Because federal law already requires public-sector 
employers to provide lactation facilities, CBO estimates that 
the aggregate cost of compliance with the incremental changes 
in H.R. 3110 would be small. In addition, because public-sector 
employees accounted for just 12 percent of the U.S. workforce 
in 2020, CBO estimates that the aggregate cost would fall below 
the threshold for intergovernmental mandates.
    The CBO staff contacts for this estimate are Meredith 
Decker (for federal costs) and Lilia Ledezma (for mandates). 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Director of Budget Analysis.

                        Committee Cost Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 3110. 
However, clause 3(d)(2)(B) of that rule provides that this 
requirement does not apply when the committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget and Impoundment 
Control Act of 1974.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, H.R. 3110, as reported, are shown as follows:

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                    FAIR LABOR STANDARDS ACT OF 1938




           *       *       *       *       *       *       *
                             maximum hours

  Sec. 7. (a)(1) Except as otherwise provided in this section, 
no employer shall employ any of his employees who in any 
workweek is engaged in commerce or in the production of goods 
for commerce, or is employed in an enterprise engaged in 
commerce or in the production of goods for commerce, for a 
workweek longer than forty hours unless such employee receives 
compensation for his employment in excess of the hours above 
specified at a rate not less than one and one-half times the 
regular rate at which he is employed.
  (2) No employer shall employ any of his employees who in any 
workweek is engaged in commerce or in the production of goods 
for commerce, or is employed in an enterprise engaged in 
commerce or in the production of goods for commerce, and who in 
such workweek is brought within the purview of this subsection 
by the amendments made to this Act by the Fair Labor Standards 
Amendments of 1966--
          (A) for a workweek longer than forty-four hours 
        during the first year from the effective date of the 
        Fair Labor Standards Amendments of 1966,
          (B) for a workweek longer than forty-two hours during 
        the second year from such date, or
          (C) for a workweek longer than forty hours after the 
        expiration of the second year from such date,
unless such employee receives compensation for his employment 
in excess of the hours above specified at a rate not less than 
one and one-half times the regular rate at which he is 
employed.
  (b) No employer shall be deemed to have violated subsection 
(a) by employing any employee for a workweek in excess of that 
specified in such subsection without paying the compensation 
for overtime employment prescribed therein if such employee is 
so employed--
          (1) in pursuance of an agreement, made as a result of 
        collective bargaining by representatives of employees 
        certified as bona fide by the National Labor Relations 
        Board, which provides that no employee shall be 
        employed more than one thousand and forty hours during 
        any period of twenty-six consecutive weeks, or
          (2) in pursuance of an agreement, made as a result of 
        collective bargaining by representatives of employees 
        certified as bona fide by the National Labor Relations 
        Board which provides that during a specified period of 
        fifty-two consecutive weeks the employee shall be 
        employed not more than two thousand two hundred and 
        forty hours and shall be guaranteed not less than one 
        thousand eight hundred and forty hours (or not less 
        than forty-six weeks at the normal number of hours 
        worked per week, but not less than thirty hours per 
        week) and not more than two thousand and eighty hours 
        of employment for which he shall receive compensation 
        for all hours guaranteed or worked at rates not less 
        than those applicable under the agreement to the work 
        performed and for all hours in excess of the guaranty 
        which are also in excess of the maximum workweek 
        applicable to such employee under subsection (a) or two 
        thousand and eighty in such period at rates not less 
        than one and one-half times the regular rate at which 
        he is employed; or
          (3) by an independently owned and controlled local 
        enterprise (including an enterprise with more than one 
        bulk storage establishment) engaged in the wholesale or 
        bulk distribution of petroleum products if--
                  (A) the annual gross volume of sales of such 
                enterprise is less than $1,000,000 exclusive of 
                excise taxes.
                  (B) more than 75 per centum of such 
                enterprise's annual dollar volume of sales is 
                made within the State in which such enterprise 
                is located, and
                  (C) not more than 25 per centum of the annual 
                dollar volume of sales of such enterprise is to 
                customers who are engaged in the bulk 
                distribution of such products for resale;
and if such employee receives compensation for employment in 
excess of twelve hours in any workday, or for employment in 
excess of fifty-six hours in any workweek, as the case may be, 
at a rate not less than one and one-half times the regular rate 
at which he is employed.
  (e) As used in this section the ``regular rate'' at which an 
employee is employed shall be deemed to include all 
remuneration for employment paid to, or on behalf of, the 
employee, but shall not be deemed to include--
          (1) sums paid as gifts; payments in the nature of 
        gifts made at Christmas time or on other special 
        occasions, as a reward for service, the amounts of 
        which are not measured by or dependent on hours worked, 
        production, or efficiency;
          (2) payments made for occasional periods when no work 
        is performed due to vacation, holiday, illness, failure 
        of the employer to provide sufficient work or other 
        similar cause; reasonable payments for traveling 
        expenses, or other expenses, incurred by an employee in 
        the furtherance of his employer's interests and 
        properly reimburseable by the employer; and other 
        similar payments to any employee which are not made as 
        compensation for his hours of employment;
          (3) sums paid in recognition of services performed 
        during a given period if either, (a) both the fact that 
        payment is to be made and the amount of the payment are 
        determined at the sole discretion of the employer at or 
        near the end of the period and not pursuant to any 
        prior contract, agreement, or promise causing the 
        employee to expect such payments regularly; or (b) the 
        payments are made pursuant to a bona fide profit-
        sharing plan or trust or bona fide thrift or savings 
        plan, meeting the requirements of the Secretary of 
        Labor set forth in appropriate regulations which he 
        shall issue, having due regard among other relevant 
        facts, to the extent to which the amounts paid to the 
        employee are determined without regard to hours of 
        work, production, or efficiency; or (c) the payments 
        are talent fees (as such talent fees are defined and 
        delimited by regulations of the Secretary) paid to 
        performers, including announcers, on radio and 
        television programs;
          (4) contributions irrevocably made by an employer to 
        a trustee or third person pursuant to a bona fide plan 
        for providing old-age retirement, life, accident, or 
        health insurance or similar benefits for employees;
          (5) extra compensation provided by a premium rate 
        paid for certain hours worked by the employee in any 
        day or workweek because such hours are hours worked in 
        excess of eight in a day or in excess of the maximum 
        workweek applicable to such employee under subsection 
        (a) or in excess of the employee's normal working hours 
        or regular working hours, as the case may be;
          (6) extra compensation provided by a premium rate 
        paid for work by the employee on Saturdays, Sundays, 
        holidays, or regular days of rest, or on the sixth or 
        seventh day of the workweek, where such premium rate is 
        not less than one and one-half times the rate 
        established in good faith for like work performed in 
        nonovertime hours on other days;
          (7) extra compensation provided by a premium rate 
        paid to the employee, in pursuance of an applicable 
        employment contract or collective-bargaining agreement, 
        for work outside of the hours established in good faith 
        by the contract or agreement as the basic, normal, or 
        regular workday (not exceeding eight hours) or workweek 
        (not exceeding the maximum workweek applicable to such 
        employee under subsection (a)), where such premium rate 
        is not less than one and one-half times the rate 
        established in good faith by the contract or agreement 
        for like work performed during such workday or 
        workweek; or
          (8) any value or income derived from employer-
        provided grants or rights provided pursuant to a stock 
        option, stock appreciation right, or bona fide employee 
        stock purchase program which is not otherwise 
        excludable under any of paragraphs (1) through (7) if--
                  (A) grants are made pursuant to a program, 
                the terms and conditions of which are 
                communicated to participating employees either 
                at the beginning of the employee's 
                participation in the program or at the time of 
                the grant;
                  (B) in the case of stock options and stock 
                appreciation rights, the grant or right cannot 
                be exercisable for a period of at least 6 
                months after the time of grant (except that 
                grants or rights may become exercisable because 
                of an employee's death, disability, retirement, 
                or a change in corporate ownership, or other 
                circumstances permitted by regulation), and the 
                exercise price is at least 85 percent of the 
                fair market value of the stock at the time of 
                grant;
                  (C) exercise of any grant or right is 
                voluntary; and
                  (D) any determinations regarding the award 
                of, and the amount of, employer-provided grants 
                or rights that are based on performance are--
                          (i) made based upon meeting 
                        previously established performance 
                        criteria (which may include hours of 
                        work, efficiency, or productivity) of 
                        any business unit consisting of at 
                        least 10 employees or of a facility, 
                        except that, any determinations may be 
                        based on length of service or minimum 
                        schedule of hours or days of work; or
                          (ii) made based upon the past 
                        performance (which may include any 
                        criteria) of one or more employees in a 
                        given period so long as the 
                        determination is in the sole discretion 
                        of the employer and not pursuant to any 
                        prior contract.
  (f) No employer shall be deemed to have violated subsection 
(a) by employing any employee for a workweek in excess of the 
maximum workweek applicable to such employee under subsection 
(a) if such employee is employed pursuant to a bona fide 
individual contract, or pursuant to an agreement made as a 
result of collective bargaining by representatives of 
employees, if the duties of such employee necessitate irregular 
hours of work, and the contract or agreement (1) specifies a 
regular rate of pay of not less than the minimum hourly rate 
provided in subsection (a) or (b) of section 6 (whichever may 
be applicable) and compensation at not less than one and one-
half times such rate for all hours worked in excess of such 
maximum workweek, and (2) provides a weekly guaranty of pay for 
not more than sixty hours based on the rates so specified.
  (g) No employer shall be deemed to have violated subsection 
(a) by employing any employee for a workweek in excess of the 
maximum workweek applicable to such employee under such 
subsection if, pursuant to an agreement or understanding 
arrived at between the employer and the employee before 
performance of the work, the amount paid to the employee for 
the number of hours worked by him in such workweek in excess of 
the maximum workweek applicable to such employee under such 
subsection--
          (1) in the case of an employee employed at piece 
        rates, is computed at piece rates not less than one and 
        one-half times the bona fide piece rates applicable to 
        the same work when performed during nonovertime hours; 
        or
          (2) in the case of an employee performing two or more 
        kinds of work for which different hourly or piece rates 
        have been established, is computed at rates not less 
        than one and one-half times such bona fide rates 
        applicable to the same work when performed during 
        nonovertime hours; or
          (3) is computed at a rate not less than one and one-
        half times the rate established by such agreement or 
        understanding as the basic rate to be used in computing 
        overtime compensation thereunder: Provided, That the 
        rate so established shall be authorized by regulation 
        by the Secretary of Labor as being substantially 
        equivalent to the average hourly earnings of the 
        employee, exclusive of overtime premiums, in the 
        particular work over a representative period of time;
and if (i) the employee's average hourly earnings for the 
workweek exclusive of payments described in paragraphs (1) 
through (7) of subsection (e) are not less than the minimum 
hourly rate required by applicable law, and (ii) extra overtime 
compensation is properly computed and paid on other forms of 
additional pay required to be included in computing the regular 
rate.
  (h)(1) Except as provided in paragraph (2), sums excluded 
from the regular rate pursuant to subsection (e) shall not be 
creditable toward wages required under section 6 or overtime 
compensation required under this section.
  (2) Extra compensation paid as described in paragraphs (5), 
(6), and (7) of subsection (e) shall be creditable toward 
overtime compensation payable pursuant to this section.
  (i) No employer shall be deemed to have violated subsection 
(a) by employing any employee of a retail or service 
establishment for a workweek in excess of the applicable 
workweek specified therein, if (1) the regular rate of pay of 
such employee is in excess of one and one-half times the 
minimum hourly rate applicable to him under section 6, and (2) 
more than half his compensation for a representative period 
(not less than one month) represents commissions on goods or 
services. In determining the proportion of compensation 
representing commissions, all earnings resulting from the 
application of a bona fide commission rate shall be deemed 
commissions on goods or services without regard to whether the 
computed commissions exceed the draw or guarantee.
  (j) No employer engaged in the operation of a hospital or an 
establishment which is an institution primarily engaged in the 
care of the sick, the aged, or the mentally ill or defective 
who reside on the premises shall be deemed to have violated 
subsection (a) if, pursuant to an agreement or understanding 
arrived at between the employer and the employee before 
performance of the work, a work period of fourteen consecutive 
days is accepted in lieu of the workweek of seven consecutive 
days for purposes of overtime computation and if, for his 
employment in excess of eight hours in any workday and in 
excess of eighty hours in such fourteen-day period, the 
employee receives compensation at a rate of not less than one 
and one-half times the regular rate at which he is employed.
  (k) No public agency shall be deemed to have violated 
subsection (a) with respect to the employment of any employee 
in fire protection activities or any employee in law 
enforcement activities (including security personnel in 
correctional institutions) if--
          (1) in a work period of 28 consecutive days the 
        employee receives for tours of duty which in the 
        aggregate exceed the lesser of (A) 216 hours, or (B) 
        the average number of hours (as determined by the 
        Secretary pursuant to section 6(c)(3) of the Fair Labor 
        Standards Amendments of 1974) in tours of duty of 
        employees engaged in such activities in work periods of 
        28 consecutive days in calendar year 1975; or
          (2) in the case of such employee to whom a work 
        period of at least 7 but less than 28 days applies, in 
        his work period the employee receives for tours of duty 
        which in the aggregate exceed a number of hours which 
        bears the same ratio to the number of consecutive days 
        in his work period as 216 hours (or if lower, the 
        number of hours referred to in clause (B) of paragraph 
        (1)) bears to 28 days;
compensation at a rate not less than one and one-half times the 
regular rate at which he is employed.
  (l) No employer shall employ any employee in domestic service 
in one or more households for a workweek longer than forty 
hours unless such employee receives compensation for such 
employment in accordance with subsection (a).
  (m) For a period or periods of not more than fourteen 
workweeks in the aggregate in any calendar year, any employer 
may employ any employee for a workweek in excess of that 
specified in subsection (a) without paying the compensation for 
overtime employment prescribed in such subsection, if such 
employee--
          (1) is employed by such employer--
                  (A) to provide services (including stripping 
                and grading) necessary and incidental to the 
                sale at auction of green leaf tobacco of type 
                11, 12, 13, 14, 21, 22, 23, 24, 31, 35, 36, or 
                37 (as such types are defined by the Secretary 
                of Agriculture), or in auction sale, buying, 
                handling, stemming, redrying, packing, and 
                storing of such tobacco,
                  (B) in auction sale, buying, handling, 
                sorting, grading, packing, or storing green 
                leaf tobacco of type 32 (as such type is 
                defined by the Secretary of Agriculture), or
                  (C) in auction sale, buying, handling, 
                stripping, sorting, grading, sizing, packing, 
                or stemming prior to packing, of perishable 
                cigar leaf tobacco of type 41, 42, 43, 44, 45, 
                46, 51, 52, 53, 54, 55, 61, or 62 (as such 
                types are defined by the Secretary of 
                Agriculture); and
          (2) receives for--
                  (A) such employment by such employer which is 
                in excess of ten hours in any workday, and
                  (B) such employment by such employer which is 
                in excess of forty-eight hours in any workweek,
        compensation at a rate not less than one and one-half 
        times the regular rate at which he is employed.
An employer who receives an exemption under this subsection 
shall not be eligible for any other exemption under this 
section.
  (n) In the case of an employee of an employer engaged in the 
business of operating a street, suburban or interurban electric 
railway or local trolley or motorbus carrier (regardless of 
whether or not such railway or carrier is public or private or 
operated for profit or not for profit), in determining the 
hours of employment of such an employee to which the rate 
prescribed by subsection (a) applies there shall be excluded 
the hours such employee was employed in charter activities by 
such employer if (1) the employee's employment in such 
activities was pursuant to an agreement or understanding with 
his employer arrived at before engaging in such employment, and 
(2) if employment in such activities is not part of such 
employee's regular employment.
  (o)(1) Employees of a public agency which is a State, a 
political subdivision of a State, or an interstate governmental 
agency may receive, in accordance with this subsection and in 
lieu of overtime compensation, compensatory time off at a rate 
not less than one and one-half hours for each hour of 
employment for which overtime compensation is required by this 
section.
  (2) A public agency may provide compensatory time under 
paragraph (1) only--
          (A) pursuant to--
                  (i) applicable provisions of a collective 
                bargaining agreement, memorandum of 
                understanding, or any other agreement between 
                the public agency and representatives of such 
                employees; or
                  (ii) in the case of employees not covered by 
                subclause (i), an agreement or understanding 
                arrived at between the employer and employee 
                before the performance of the work; and
          (B) if the employee has not accrued compensatory time 
        in excess of the limit applicable to the employee 
        prescribed by paragraph (3).
In the case of employees described in clause (A)(ii) hired 
prior to April 15, 1986, the regular practice in effect on 
April 15, 1986, with respect to compensatory time off for such 
employees in lieu of the receipt of overtime compensation, 
shall constitute an agreement or understanding under such 
clause (A)(ii). Except as provided in the previous sentence, 
the provision of compensatory time off to such employees for 
hours worked after April 14, 1986, shall be in accordance with 
this subsection.
  (3)(A) If the work of an employee for which compensatory time 
may be provided included work in a public safety activity, an 
emergency response activity, or a seasonal activity, the 
employee engaged in such work may accrue not more than 480 
hours of compensatory time for hours worked after April 15, 
1986. If such work was any other work, the employee engaged in 
such work may accrue not more than 240 hours of compensatory 
time for hours worked after April 15, 1986. Any such employee 
who, after April 15, 1986, has accrued 480 or 240 hours, as the 
case may be, of compensatory time off shall, for additional 
overtime hours of work, be paid overtime compensation.
  (B) If compensation is paid to an employee for accrued 
compensatory time off, such compensation shall be paid at the 
regular rate earned by the employee at the time the employee 
receives such payment.
  (4) An employee who has accrued compensatory time off 
authorized to be provided under paragraph (1) shall, upon 
termination of employment, be paid for the unused compensatory 
time at a rate of compensation not less than--
          (A) the average regular rate received by such 
        employee during the last 3 years of the employee's 
        employment, or
          (B) the final regular rate received by such employee,
whichever is higher
  (5) An employee of a public agency which is a State, 
political subdivision of a State, or an interstate governmental 
agency--
          (A) who has accrued compensatory time off authorized 
        to be provided under paragraph (1), and
          (B) who has requested the use of such compensatory 
        time,
shall be permitted by the employee's employer to use such time 
within a reasonable period after making the request if the use 
of the compensatory time does not unduly disrupt the operations 
of the public agency.
  (6) The hours an employee of a public agency performs court 
reporting transcript preparation duties shall not be considered 
as hours worked for the purposes of subsection (a) if--
          (A) such employee is paid at a per-page rate which is 
        not less than--
                  (i) the maximum rate established by State law 
                or local ordinance for the jurisdiction of such 
                public agency,
                  (ii) the maximum rate otherwise established 
                by a judicial or administrative officer and in 
                effect on July 1, 1995, or
                  (iii) the rate freely negotiated between the 
                employee and the party requesting the 
                transcript, other than the judge who presided 
                over the proceedings being transcribed, and
          (B) the hours spent performing such duties are 
        outside of the hours such employee performs other work 
        (including hours for which the agency requires the 
        employee's attendance) pursuant to the employment 
        relationship with such public agency.
For purposes of this section, the amount paid such employee in 
accordance with subparagraph (A) for the performance of court 
reporting transcript preparation duties, shall not be 
considered in the calculation of the regular rate at which such 
employee is employed.
  (7) For purposes of this subsection--
          (A) the term ``overtime compensation'' means the 
        compensation required by subsection (a), and
          (B) the terms ``compensatory time'' and 
        ``compensatory time off'' mean hours during which an 
        employee is not working, which are not counted as hours 
        worked during the applicable workweek or other work 
        period for purposes of overtime compensation, and for 
        which the employee is compensated at the employee's 
        regular rate.
  (p)(1) If an individual who is employed by a State, political 
subdivision of a State, or an interstate governmental agency in 
fire protection or law enforcement activities (including 
activities of security personnel in correctional institutions) 
and who, solely at such individual's option, agrees to be 
employed on a special detail by a separate or independent 
employer in fire protection, law enforcement, or related 
activities, the hours such individual was employed by such 
separate and independent employer shall be excluded by the 
public agency employing such individual in the calculation of 
the hours for which the employee is entitled to overtime 
compensation under this section if the public agency--
          (A) requires that its employees engaged in fire 
        protection, law enforcement, or security activities be 
        hired by a separate and independent employer to perform 
        the special detail,
          (B) facilitates the employment of such employees by a 
        separate and independent employer, or
          (C) otherwise affects the condition of employment of 
        such employees by a separate and independent employer.
  (2) If an employee of a public agency which is a State, 
political subdivision of a State, or an interstate governmental 
agency undertakes, on an occasional or sporadic basis and 
solely at the employee's option, part-time employment for the 
public agency which is in a different capacity from any 
capacity in which the employee is regularly employed with the 
public agency, the hours such employee was employed in 
performing the different employment shall be excluded by the 
public agency in the calculation of the hours for which the 
employee is entitled to overtime compensation under this 
section.
  (3) If an individual who is employed in any capacity by a 
public agency which is a State, political subdivision of a 
State, or an interstate governmental agency, agrees, with the 
approval of the public agency and solely at the option of such 
individual, to substitute during scheduled work hours for 
another individual who is employed by such agency in the same 
capacity, the hours such employee worked as a substitute shall 
be excluded by the public agency in the calculation of the 
hours for which the employee is entitled to overtime 
compensation under this section.
  (q) Any employer may employ any employee for a period or 
periods of not more than 10 hours in the aggregate in any 
workweek in excess of the maximum workweek specified in 
subsection (a) without paying the compensation for overtime 
employment prescribed in such subsection, if during such period 
or periods the employee is receiving remedial education that 
is--
          (1) provided to employees who lack a high school 
        diploma or educational attainment at the eighth grade 
        level;
          (2) designed to provide reading and other basic 
        skills at an eighth grade level or below; and
          (3) does not include job specific training.
  [(r)(1) An employer shall provide--
          [(A) a reasonable break time for an employee to 
        express breast milk for her nursing child for 1 year 
        after the child's birth each time such employee has 
        need to express the milk; and
          [(B) a place, other than a bathroom, that is shielded 
        from view and free from intrusion from coworkers and 
        the public, which may be used by an employee to express 
        breast milk.
  [(2) An employer shall not be required to compensate an 
employee receiving reasonable break time under paragraph (1) 
for any work time spent for such purpose.
  [(3) An employer that employs less than 50 employees shall 
not be subject to the requirements of this subsection, if such 
requirements would impose an undue hardship by causing the 
employer significant difficulty or expense when considered in 
relation to the size, financial resources, nature, or structure 
of the employer's business.
  [(4) Nothing in this subsection shall preempt a State law 
that provides greater protections to employees than the 
protections provided for under this subsection.]

           *       *       *       *       *       *       *


                            prohibited acts

  Sec. 15. (a) After the expiration of one hundred and twenty 
days from the date of enactment of this Act, it shall be 
unlawful for any person--
          (1) to transport, offer for transportation, ship, 
        deliver, or sell in commerce, or to ship, deliver, or 
        sell with knowledge that shipment or delivery or sale 
        thereof in commerce is intended, any goods in the 
        production of which any employee was employed in 
        violation of section 6 or section 7, or in violation of 
        any regulation or order of the Secretary of Labor 
        issued under section 14; except that no provision of 
        this Act shall impose any liability upon any common 
        carrier for the transportation in commerce in the 
        regular course of its business of any goods not 
        produced by such common carrier, and no provision of 
        this Act shall excuse any common carrier from its 
        obligation to accept any goods for transportation; and 
        except that any such transportation, offer, shipment, 
        delivery, or sale of such goods by a purchaser who 
        acquired them in good faith in reliance on written 
        assurance from the producer that the goods were 
        produced in compliance with the requirements of the 
        Act, and who acquired such goods for value without 
        notice of any such violation, shall not be deemed 
        unlawful;
          (2) to violate any of the provisions of section 6 or 
        section 7, or any of the provisions of any regulation 
        or order of the Secretary issued under section 14;
          (3) to 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, or has 
        testified or is about to testify in any such 
        proceeding, or has served or is about to serve on an 
        industry committee;
          (4) to violate any of the provisions of section 12;
          (5) to violate any of the provisions of section 11(c) 
        or any regulation or order made or continued in effect 
        under the provisions of section 11(d), or to make any 
        statement, report, or record filed or kept pursuant to 
        the provisions of such section or of any regulation or 
        order thereunder, knowing such statement, report, or 
        record to be false in a material respect[.]; and
          (6) to violate any of the provisions of section 18D.
  (b) For the purposes of subsection (a)(1) proof that any 
employee was employed in any place of employment where goods 
shipped or sold in commerce were produced, within ninety days 
prior to the removal of the goods from such place of 
employment, shall be prima facie evidence that such employee 
was engaged in the production of such goods.

                               penalties

  Sec. 16. (a) Any person who willfully violates any of the 
provisions of section 15 shall upon conviction thereof be 
subject to a fine of not more than $10,000, or to imprisonment 
for not more than six months, or both. No person shall be 
imprisoned under this subsection except for an offense 
committed after the conviction of such person for a prior 
offense under this subsection.
  (b) Any employer who violates the provisions of section 6 or 
section 7 of this Act shall be liable to the employee or 
employees affected in the amount of their unpaid minimum wages, 
or the unpaid overtime compensation, as the case may be, and in 
an additional equal amount as liquidated damages. Any employer 
who violates the provisions of section [15(a)(3)] 7(r) or 
15(a)(3) of this Act shall be liable for such legal or 
equitable relief as may be appropriate to effectuate the 
purposes of section [15(a)(3)] 7(r) or 15(a)(3), including 
without limitation employment, reinstatement, promotion, and 
the payment of wages lost and an additional equal amount as 
liquidated damages. Any employer who violates section 
3(m)(2)(B) shall be liable to the employee or employees 
affected in the amount of the sum of any tip credit taken by 
the employer and all such tips unlawfully kept by the employer, 
and in an additional equal amount as liquidated damages. An 
action to recover the liability prescribed in the preceding 
sentences may be maintained against any employer (including a 
public agency) in any Federal or State court of competent 
jurisdiction by any one or more employees for and in behalf of 
himself or themselves and other employees similarly situated. 
No employees shall be a party plaintiff to any such action 
unless he gives his consent in writing to become such a party 
and such consent is filed in the court in which such action is 
brought. The court in such action shall, in addition to any 
judgment awarded to the plaintiff or plaintiffs, allow a 
reasonable attorney's fee to be paid by the defendant, and 
costs of the action. The right provided by this subsection to 
bring an action by or on behalf of any employee, and the right 
of any employee to become a party plaintiff to any such action, 
shall terminate upon the filing of a complaint by the Secretary 
of Labor in an action under section 17 in which (1) restraint 
is sought of any further delay in the payment of unpaid minimum 
wages, or the amount of unpaid overtime compensation, as the 
case may be, owing to such employee under section 6 or section 
7 of this act by an employer liable therefor under the 
provisions of this subsection or (2) legal or equitable relief 
is sought as a result of alleged violations of section 
[15(a)(3)] 7(r) or 15(a)(3).
[Effective on date of enactment, section 2(b) of H.R. 3110 (as 
reported) provides for an amendment to section 16(b) of the 
Fair Labor Standards Act of 1938 which is shown above. Section 
16(b) of the Fair Labor Standards Act of 1938 is further 
amended by section 2(a)(3) of such H.R. 3110 (as reported) 
which takes effect on 120 days after the date of enactment of 
H.R. 3110 (as reported) pursuant to section 3(a) of the 
reported bill. Subsection (b) of such section 16 of the Fair 
Labor Standards Act of 1938, as amended by subsections (a)(3) 
and (b) of section 2 of H.R. 3110 (as reported), is amended as 
follows:]
  (b) Any employer who violates the provisions of section 6 or 
section 7 of this Act shall be liable to the employee or 
employees affected in the amount of their unpaid minimum wages, 
or the unpaid overtime compensation, as the case may be, and in 
an additional equal amount as liquidated damages. Any employer 
who violates the provisions of section [7(r)] 18D of this title 
or 15(a)(3) of this Act shall be liable for such legal or 
equitable relief as may be appropriate to effectuate the 
purposes of section [7(r)] 18D of this title or 15(a)(3), 
including without limitation employment, reinstatement, 
promotion, and the payment of wages lost and an additional 
equal amount as liquidated damages. Any employer who violates 
section 3(m)(2)(B) shall be liable to the employee or employees 
affected in the amount of the sum of any tip credit taken by 
the employer and all such tips unlawfully kept by the employer, 
and in an additional equal amount as liquidated damages. An 
action to recover the liability prescribed in the preceding 
sentences may be maintained against any employer (including a 
public agency) in any Federal or State court of competent 
jurisdiction by any one or more employees for and in behalf of 
himself or themselves and other employees similarly situated. 
No employees shall be a party plaintiff to any such action 
unless he gives his consent in writing to become such a party 
and such consent is filed in the court in which such action is 
brought. The court in such action shall, in addition to any 
judgment awarded to the plaintiff or plaintiffs, allow a 
reasonable attorney's fee to be paid by the defendant, and 
costs of the action. The right provided by this subsection to 
bring an action by or on behalf of any employee, and the right 
of any employee to become a party plaintiff to any such action, 
shall terminate upon the filing of a complaint by the Secretary 
of Labor in an action under section 17 in which (1) restraint 
is sought of any further delay in the payment of unpaid minimum 
wages, or the amount of unpaid overtime compensation, as the 
case may be, owing to such employee under section 6 or section 
7 of this act by an employer liable therefor under the 
provisions of this subsection or (2) legal or equitable relief 
is sought as a result of alleged violations of section [7(r)] 
18D of this title or 15(a)(3).
  (c) The Secretary is authorized to supervise the payment of 
the unpaid minimum wages or the unpaid overtime compensation 
owing to any employee or employees under section 6 or 7 of this 
Act, and the agreement of any employee to accept such payment 
shall upon payment in full constitute a waiver by such employee 
of any right he may have under subsection (b) of this section 
to such unpaid minimum wages or unpaid overtime compensation 
and an additional equal amount as liquidated damages. The 
Secretary may bring an action in any court of competent 
jurisdiction to recover the amount of the unpaid minimum wages 
or overtime compensation and an equal amount as liquidated 
damages. The right provided by subsection (b) to bring an 
action by or on behalf of any employee to recover the liability 
specified in the first sentence of such subsection and of any 
employee to become a party plaintiff to any such action shall 
terminate upon the filing of a complaint by the Secretary in an 
action under this subsection in which a recovery is sought of 
unpaid minimum wages or unpaid overtime compensation under 
sections 6 and 7 or liquidated or other damages provided by 
this subsection owing to such employee by an employer liable 
under the provisions of subsection (b), unless such action is 
dismissed without prejudice on motion of the Secretary. Any 
sums thus recovered by the Secretary on behalf of an employee 
pursuant to this subsection shall be held in a special deposit 
account and shall be paid, on order of the Secretary, directly 
to the employee or employees affected. Any such sums not paid 
to an employee because of inability to do so within a period of 
three years shall be covered into the Treasury of the United 
States as miscellaneous receipts. In determining when an action 
is commenced by the Secretary under this subsection for the 
purposes of the statutes of limitations provided in section 
6(a) of the Portal-to-Portal Act of 1947, it shall be 
considered to be commenced in the case of any individual 
claimant on the date when the complaint is filed if he is 
specifically named as a party plaintiff in the complaint, or if 
his name did not so appear, on the subsequent date on which his 
name is added as a party plantiff in such action. The authority 
and requirements described in this subsection shall apply with 
respect to a violation of section 3(m)(2)(B), as appropriate, 
and the employer shall be liable for the amount of the sum of 
any tip credit taken by the employer and all such tips 
unlawfully kept by the employer, and an additional equal amount 
as liquidated damages.
  (d) In any action or proceeding commenced prior to, on, or 
after the date of enactment of this subsection, no employer 
shall be subject to any liability or punishment under this Act 
or the Portal-to-Portal Act of 1947 on account of his failure 
to comply with any provision or provisions of such Acts (1) 
with respect to work heretofore or hereafter performed in a 
workplace to which the exemption in section 13(f) is 
applicable, (2) with respect to work performed in Guam, the 
Canal Zone, or Wake Island before the effective date of this 
amendment of subsection (d), or (3) with respect to work 
performed in a possession named in section 6(a)(3) at any time 
prior to the establishment by the Secretary, as provided 
therein, of a minimum wage rate applicable to such work.
  (e)(1)(A) Any person who violates the provisions of sections 
12 or 13(c), relating to child labor, or any regulation issued 
pursuant to such sections, shall be subject to a civil penalty 
not to exceed--
                          (i) $11,000 for each employee who was 
                        the subject of such a violation; or
                          (ii) $50,000 with regard to each such 
                        violation that causes the death or 
                        serious injury of any employee under 
                        the age of 18 years, which penalty may 
                        be doubled where the violation is a 
                        repeated or willful violation.
  (B) For purposes of subparagraph (A), the term ``serious 
injury'' means--
          (i) permanent loss or substantial impairment of one 
        of the senses (sight, hearing, taste, smell, tactile 
        sensation);
          (ii) permanent loss or substantial impairment of the 
        function of a bodily member, organ, or mental faculty, 
        including the loss of all or part of an arm, leg, foot, 
        hand or other body part; or
          (iii) permanent paralysis or substantial impairment 
        that causes loss of movement or mobility of an arm, 
        leg, foot, hand or other body part.
  (2) Any person who repeatedly or willfully violates section 6 
or 7, relating to wages, shall be subject to a civil penalty 
not to exceed $1,100 for each such violation. Any person who 
violates section 3(m)(2)(B) shall be subject to a civil penalty 
not to exceed $1,100 for each such violation, as the Secretary 
determines appropriate, in addition to being liable to the 
employee or employees affected for all tips unlawfully kept, 
and an additional equal amount as liquidated damages, as 
described in subsection (b).
  (3) In determining the amount of any penalty under this 
subsection, the appropriateness of such penalty to the size of 
the business of the person charged and the gravity of the 
violation shall be considered. The amount of any penalty under 
this subsection, when finally determined, may be--
          (A) deducted from any sums owing by the United States 
        to the person charged;
          (B) recovered in a civil action brought by the 
        Secretary in any court of competent jurisdiction, in 
        which litigation the Secretary shall be represented by 
        the Solicitor of Labor; or
          (C) ordered by the court, in an action brought for a 
        violation of section 15(a)(4) or a repeated or willful 
        violation of section 15(a)(2), to be paid to the 
        Secretary.
  (4) Any administrative determination by the Secretary of the 
amount of any penalty under this subsection shall be final, 
unless within 15 days after receipt of notice thereof by 
certified mail the person charged with the violation takes 
exception to the determination that the violations for which 
the penalty is imposed occurred, in which event final 
determination of the penalty shall be made in an administrative 
proceeding after opportunity for hearing in accordance with 
section 554 of title 5, United States Code, and regulations to 
be promulgated by the Secretary.
  (5) Except for civil penalties collected for violations of 
section 12, sums collected as penalties pursuant to this 
section shall be applied toward reimbursement of the costs of 
determining the violations and assessing and collecting such 
penalties, in accordance with the provision of section 2 of the 
Act entitled ``An Act to authorize the Department of Labor to 
make special statistical studies upon payment of the cost 
thereof and for other purposes'' (29 U.S.C. 9a). Civil 
penalties collected for violations of section 12 shall be 
deposited in the general fund of the Treasury.

           *       *       *       *       *       *       *


SEC. 18D. BREASTFEEDING ACCOMMODATIONS IN THE WORKPLACE.

  (a) An employer shall provide--
          (1) a reasonable break time for an employee to 
        express breast milk each time such employee has need to 
        express breast milk for the 2-year period beginning on 
        the date on which the circumstances related to such 
        need arise; and
          (2) a place, other than a bathroom, that is shielded 
        from view and free from intrusion from coworkers and 
        the public, which may be used by an employee to express 
        breast milk.
  (b)(1) Subject to paragraph (2), an employer shall not be 
required to compensate an employee receiving break time under 
subsection (a)(1) for any time spent during the workday for 
such purpose unless otherwise required by Federal or State law 
or municipal ordinance.
  (2) Break time provided under subsection (a)(1) shall be 
considered hours worked if the employee is not completely 
relieved from duty during the entirety of such break.
  (c) An employer that employs fewer than 25 employees shall 
not be subject to the requirements of this section, if such 
requirements would impose an undue hardship by causing the 
employer significant difficulty or expense when considered in 
relation to the size, financial resources, nature, or structure 
of the employer's business.
  (d) No provision of this section or of any order thereunder 
shall excuse noncompliance with any Federal or State law or 
municipal ordinance that provides greater protections to 
employees than the protections provided for under this section.
  (e)(1) Subject to paragraph (2), before an employee commences 
an action to recover liability under section 16(b) for a 
violation of paragraph (a)(2), the employee shall inform the 
employer of the failure to provide adequate place and provide 
the employer with 10 calendar days after such notice is 
provided to come into compliance with subsection (a)(2) with 
respect to such employee.
  (2) Paragraph (1) shall not apply in the case that--
          (A) the employee has been discharged because the 
        employee has made a request for break time or place 
        under this section or has opposed any employer conduct 
        related to this section; or
          (B) the employer has indicated that the employer has 
        no intention of complying with subsection (a)(2).
  (f) The circumstances described in subsection (a)(1) arise if 
an employee--
          (1) begins providing breast milk for a nursing child; 
        or
          (2) gives birth, including to--
                  (A) a stillborn child; or
                  (B) a child over whom the employee does not 
                retain legal custody.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

                              INTRODUCTION

    Committee Republicans believe that nursing mothers deserve 
adequate protections in the workplace and support existing 
breastfeeding accommodations under current law. While it may be 
appropriate for Congress to review and clarify requirements 
related to nursing mothers' needs under the Fair Labor 
Standards Act (FLSA or Act), such a change should be thoroughly 
reviewed by the Committee and not create unreasonable or 
unintended consequences. H.R. 3110 unfortunately misses the 
mark in these respects.
    In 2010, Congress enacted Section 7(r) of the FLSA\1\ as 
part of the Patient Protection and Affordable Care Act 
(ACA).\2\ Section 7(r) requires certain employers to provide 
reasonable break time for non-exempt employees to pump breast 
milk for one year after a child's birth. The provision requires 
these employers to provide a location to pump breastmilk, other 
than a bathroom, that is shielded from view and free from 
coworker or public intrusion. Under current law, a covered 
employer is not required to compensate an employee for break 
time taken for the purposes of pumping milk. Section 7(r) 
potentially exempts employers with less than 50 employees if 
its requirements would impose an ``undue hardship'' by either 
causing significant difficulty or expense in relation to the 
size, financial resources, nature, or structure of the 
employer's business. The Section 7(r) nursing accommodation 
requirements do not apply to the following workers: those in 
executive, administrative, professional, and outside sales 
roles; in seafaring or fishing-related activities or 
operations; agriculture and transportation; and in academic 
office or teaching positions, including elementary and 
secondary school teachers.
---------------------------------------------------------------------------
    \1\29 U.S.C. Sec. 207(r).
    \2\Pub. L. No. 111-148 (2010).
---------------------------------------------------------------------------
    Supporters of H.R. 3110, the PUMP for Nursing Mothers Act 
(PUMP Act), claim the bill's purpose is to fill unintended gaps 
in coverage in the 2010 law. Unfortunately, the legislation 
implements a misguided approach which includes overly broad 
coverage, excessively punitive requirements relying on 
gratuitous and disproportionate penalties, and an inappropriate 
treatment of compensable time.
    Committee Republicans support a solution that would respect 
the unique characteristics and location of certain workplaces 
while providing common-sense accommodations for nursing 
mothers. However, by advancing H.R. 3110 on a party-line vote, 
the Committee majority is choosing to advance a flawed scheme 
which includes unreasonably expansive mandates. For these 
reasons, and as set forth more fully below, Committee 
Republicans oppose H.R. 3110 in its current form.

                        CONCERNS WITH H.R. 3110

Significant and Unwarranted Expansion in Scope of Coverage
    Under current law, FLSA breastfeeding accommodation 
requirements have the same scope of application as the Act's 
overtime requirements. The FLSA exempts certain classes of 
employees from these requirements based on ``duties tests'' and 
salary thresholds to determine whether employees fall within 
those exempted classes.\3\ The FLSA also exempts specific jobs 
from these requirements.\4\
---------------------------------------------------------------------------
    \3\29 U.S.C. Sec. 213.
    \4\Id.
---------------------------------------------------------------------------
    H.R. 3110 strikes Section 7(r) of the FLSA to create a new 
Section 18D for the Act's breastfeeding accommodation 
requirements. Section 18D expands the FLSA's coverage related 
to break time for nursing mothers to apply to all employees 
covered by the FLSA, including workers in executive, 
administrative, professional, and outside sales roles; 
elementary and secondary school teachers; workers in seafaring 
or fishing-related activities or operations; and agriculture 
and transportation workers.
    As a result, H.R. 3110 would impose one-size-fits-all 
nursing accommodation requirements on disparate work 
environments including those found in agricultural, 
transportation, and shipping-based industries. These mandates 
will impose substantial logistical barriers for compliance and 
in certain settings introduce safety concerns based on the 
nature of specific business operations.
    On March 18, 2021, Ms. Camille Olson, Partner at Seyfarth 
Shaw LLP, testified before the Subcommittee on Civil Rights and 
Human Services and Subcommittee on Workforce Protections at a 
hearing on four unrelated bills including the version of the 
PUMP Act from the 116th Congress.\5\ With regard to the PUMP 
Act, Ms. Olson discussed the necessity of ensuring that 
requirements relating to breastfeeding accommodations account 
for unique or remote work locations:
---------------------------------------------------------------------------
    \5\See H.R. 5592, 116th Cong. (2020). Several substantive 
provisions in H.R. 3110, as reported by the Committee, were not 
included in the bill as introduced on May 11, 2021, or in the PUMP Act 
as introduced in the 116th Congress, and were added at the Committee 
markup on May 26, 2021, by an Amendment in the Nature of a Substitute 
offered by Rep. Alma Adams (D-NC). Further, H.R. 3110 was introduced 
two months after the March 18, 2021, joint subcommittee hearing on four 
disparate bills including the PUMP Act as introduced in the 116th 
Congress.

          Providing clear guidance to employers [is needed] in 
        situations where employees are not working at a fixed 
        location, as to how to comply with the Act's 
        obligations. Employees who work in these work 
        environments include commercial airline pilots, 
        patrolling police officers, and delivery drivers (to 
        name a few). How should employers meet their 
        obligations to provide private space for their 
        employees to express milk while they are on duty in 
        these environments?\6\
---------------------------------------------------------------------------
    \6\Fighting for Fairness: Examining Legislation to Confront 
Workplace Discrimination: Hearing Before the Subcomm. on Civ. Rights & 
Hum. Serv. & Subcomm. on Workforce Protections of the H. Comm. on Educ. 
& Lab., 117th Cong. (2021) (statement of Camille Olson, Partner, 
Seyfarth Shaw LLP, at 38) [hereinafter Olson statement].

    H.R. 3110's break requirements fail to account for the 
unique working conditions of remote locations described by Ms. 
Olson, including occupations in the aviation industry. In 2019, 
the Federal Aviation Administration (FAA) argued in federal 
court that mandated meal and rest break requirements are in 
conflict with personnel duties under FAA safety and staffing 
---------------------------------------------------------------------------
requirements:

          The [FAA] regulations recognize that flight 
        attendants have ``cabin-safety-related 
        responsibilities'' that could arise throughout a 
        flight, . . . including in the event of an emergency. . 
        . . These tasks are critical, and federal regulations 
        contemplate that attendants will be on-duty and on-call 
        to perform them during flight. Relieving attendants of 
        all duty while inflight or even taxiing would clearly 
        interfere with the duties prescribed by federal 
        regulations.\7\
---------------------------------------------------------------------------
    \7\Brief for the United States as Amicus Curiae in Support of 
Appellants, Bernstein v. Virgin Am., Inc., 990 F.3d 1157 (9th Cir. 
2021) (No. 19-15382).
---------------------------------------------------------------------------
    H.R. 3110 requires that airline employees, who are 
currently exempt from FLSA breastfeeding accommodation 
requirements, have access to a space and time for pumping 
breast milk, despite the fact that aircraft designs are 
regulated by the FAA for safety and reliability purposes, with 
limited ability to add additional spaces. In addition to severe 
space limitations, the nature of aviation work also requires 
specific personnel and safety policies at odds with the 
mandates in H.R. 3110.
    Remote or rural airports face unique challenges because of 
the small planes that operate out of these regions, further 
limiting the ability to comply with the requirement to provide 
a private space, other than a bathroom, as mandated by H.R. 
3110. Additionally, these planes are operated by small flight 
crews, with few redundancies in duties among staff, 
complicating the ability of aviation businesses to maintain 
appropriate staffing levels and access to services when faced 
with inflexible government mandated breaks. Air carriers are 
therefore exempt from current FLSA Section 7(r) requirements.
    H.R. 3110 would deny these employers and others facing 
unique workplace and operational realities, such as 
agricultural employers, the ability to implement policies that 
meet their employees' needs. H.R. 3110 treats all nursing 
mothers and workplaces as if they are the same, despite known 
differences in employees' needs, industry-specific challenges, 
and the ability of certain employers to comply. Nursing mothers 
in these environments have different needs than those working 
in an office or a warehouse, yet H.R. 3110 fails to allow for 
those differences.
Dramatic and Disproportionate Expansion of Penalties
    H.R. 3110 significantly expands the penalties for employer 
violations of required nursing accommodation mandates. Under 
current law, damages for proven violations include unpaid wages 
and an additional equal amount as liquidated damages, as well 
as civil penalties for repeated or willful violations.\8\ Under 
H.R. 3110, remedies are identical to FLSA violations related to 
discharging or discriminating against an employee for filing an 
FLSA complaint or testifying in an FLSA proceeding. These 
remedies include employment, reinstatement, promotion, and the 
payment of lost wages and an additional amount as liquidated 
damages, while also allowing for the recovery of emotional 
distress damages.\9\
---------------------------------------------------------------------------
    \8\29 U.S.C. Sec. 216(b), (e)(2).
    \9\29 U.S.C. Sec. Sec. 215(a)(3), 216(b).
---------------------------------------------------------------------------
    Ms. Olson in her testimony discussed specific concerns 
about these provisions and noted the Department of Labor is 
well-positioned to enforce nursing-mother accommodations under 
current law:

          Extending the private right of action to its utmost 
        limit will expose already overburdened courts with a 
        flood of individual and collective actions for 
        technical violations of Section 7(r)--actions with 
        limited, delayed recovery that will serve as little 
        more than vehicles for attorney fees and will add 
        additional costs and burdens to employers with no 
        benefit to workers. The Department of Labor, which has 
        the power to investigate alleged violations and impose 
        penalties for repeated or willful violations of Section 
        7(r), is better suited to quickly and sufficiently 
        enforce such technical violations of Section 7(r).\10\
---------------------------------------------------------------------------
    \10\Olson statement, supra note 8, at 38.

    Committee Republicans are similarly concerned that the 
penalties mandated by H.R. 3110 go well beyond those set under 
current law and believe these inflated remedies are not 
proportionate to the types of breastfeeding-accommodation 
violations which could occur under the bill. Coupled with the 
sweeping expansion in coverage described previously, the 
increased penalties will create large incentives for trial 
lawyers to file numerous lawsuits against unsuspecting 
employers for purported violations with the aim of securing 
quick settlements under the threat of protracted litigation.
Increased Liability for Small Businesses
    H.R. 3110 would impose burdens on the entities least able 
to bear them: small businesses. H.R. 3110 as reported by the 
Committee drastically cuts the employee threshold for the 
potential undue hardship exemption by half from its current-law 
level of fewer than 50 employees\11\ to a proposed threshold of 
fewer than 25 employees.\12\
---------------------------------------------------------------------------
    \11\29 U.S.C. 207(r)(3).
    \12\Amendment in the Nature of a Substitute to H.R. 1310, 117th 
Cong. Sec. 2(a)(4) (2021), https://edlabor.house.gov/imo/media/doc/
H.R.%203110_PUMP_ANS.pdf.
---------------------------------------------------------------------------
    In response, the National Federation of Independent 
Business (NFIB) sent a letter to the Committee expressing 
opposition to lowering the small-employer hardship exemption 
threshold.\13\ Committee Republicans support the views 
expressed by NFIB in this regard and strongly oppose lowering 
the threshold which applies to the undue hardship exemption.
---------------------------------------------------------------------------
    \13\Letter from Kevin Kuhlman, Vice President, Nat. Fed. of Indep. 
Bus., to Reps. Bobby Scott & Virginia Foxx (May 26, 2021) (on file).
---------------------------------------------------------------------------

Establishes an Inappropriate Compensatory Scheme

    Under current law, employers are not required to compensate 
eligible employees taking breaks for the purposes of expressing 
breastmilk, unless greater protections are offered under state 
or local law.\14\ H.R. 3110 calls this requirement into 
question and creates a new and confusing framework in which an 
employer may owe pay for time periods that have previously not 
been considered compensable.
---------------------------------------------------------------------------
    \14\29 U.S.C. Sec. 207(r)(2).
---------------------------------------------------------------------------
    H.R. 3110 imposes a new requirement that individuals must 
be entirely relieved from work during a break for the purposes 
of pumping milk in order for break time to be non-compensable. 
An employee is owed compensation for the entire break in the 
event that any work is performed--regardless of its 
proportionate impact or length of time.\15\ Therefore, an 
employee engaging in momentary or intermittent work during 
their break time, including passive activities such as email, 
phone, or radio monitoring, be paid for additional time, 
previously treated as non-compensable, where no work is 
performed. As such, H.R. 3110 therefore creates circumstances 
where an employer must closely monitor an employee's break to 
establish whether the individual is completely relieved from 
duty and not engaging in any work during the break. This 
monitoring could create an unnecessary and unfortunate conflict 
with a nursing mother's need for privacy when expressing 
breastmilk.
---------------------------------------------------------------------------
    \15\H.R. 3110, 117th Cong. Sec. 2(b)(2).
---------------------------------------------------------------------------
    H.R. 3110 also exacerbates existing FLSA compliance 
challenges stemming from adding new mandates to a calcified law 
that was enacted over 80 years ago. In February 2017, Ms. 
Christine Walters testified on behalf of the Society for Human 
Resource Management at a hearing on ``Federal Wage and Hour 
Policies in the Twenty-First Century Economy.'' She discussed 
the challenges of complying with FLSA requirements in the 
modern workplace:

          [T]he FLSA was written before the proliferation of 
        smartphones. Phones and other ``smart'' devices are 
        nearly universal in today's workforce, yet continue to 
        present challenges in regards to nonexempt employees. 
        It is not uncommon for nonexempt employees to want to 
        access online work platforms remotely after work hours. 
        Because nonexempt employees are only paid for the hours 
        they work, all hours must be closely tracked in order 
        to remain in compliance with the FLSA. . . . This is 
        yet another example of how the FLSA has not kept pace 
        with the 21st century economy.\16\
---------------------------------------------------------------------------
    \16\Federal Wage and Hour Policies in the Twenty-First Century 
Economy: Hearing before the Subcomm. on Workforce Protections of the H. 
Comm. on Educ. & the Workforce, 117th Cong. 49 (2017) (statement of 
Christine Walters, Sole Proprietor, FIVEL Co.).

As Ms. Walters highlights, employers already have great 
difficulty in determining their obligations under the FLSA. 
Employers would face additional burdens determining 
compensation under H.R. 3110 under the threat of even greater 
penalties for ``non-compliance.''
    In addition, H.R. 3110 creates an inappropriate 
compensatory scheme incompatible with the FLSA by requiring 
that an employer compensate an employee for a break for the 
purposes of expressing breast milk if such compensation is 
otherwise required by federal law.\17\ In comments for the 
record of the March 18, 2021, joint subcommittee hearing, Mr. 
Jim Paretti, Shareholder at Littler Mendelson, P.C. Workplace 
Policy Institute, described the potentially unintended 
consequences the PUMP Act could have in the treatment of the 
compensability of lactation breaks:
---------------------------------------------------------------------------
    \17\H.R. 3110, 117th Cong. Sec. 2(a)(4).

          The inclusion of the word ``Federal'' . . . would 
        arguably convert all ``short'' lactation breaks 
        (including those less than 20 minutes) into compensable 
        hours worked. See 29 C.F.R. 785.18 (``Rest periods of 
        short duration, running from 5 minutes to about 20 
        minutes . . . must be counted as hours worked.''). It 
        may be that many employers already treat all lactation 
        breaks as compensable hours worked; however, for 
        employers that require employees to ``clock out'' for 
        lactation breaks (or that only permit a certain number 
        of paid lactation breaks per day), this could be a 
        significant change.\18\
---------------------------------------------------------------------------
    \18\Fighting for Fairness: Examining Legislation to Confront 
Workplace Discrimination: Hearing Before the Subcomm. on Civ. Rights & 
Hum. Serv. & Subcomm. on Workforce Protections of the H. Comm. on Educ. 
& Lab., 117th Cong. (2021) (letter from James A. Paretti, Jr., 
Shareholder, Littler Mendelson, P.C. Workplace Pol'y Inst., to Reps. 
Suzanne Bonamici et al.).

    Committee Republicans support paying employees whenever 
they engage in work. However, H.R. 3110 creates unnecessary and 
confusing compensatory requirements that are incompatible with 
the modern workplace.

                         REPUBLICAN SUBSTITUTE

    Consistent with Committee Republicans' support for working 
women and flexible workplace policies that empower them, 
Republican Leader Virginia Foxx offered a substitute amendment 
at the Committee markup to make workable and commonsense 
alterations to existing FLSA nursing-accommodation 
requirements. The amendment embodies a responsible approach to 
address the needs of working mothers.
    The Foxx substitute amendment modifies current-law coverage 
of nursing-mother accommodations by including white collar 
executive, administrative, and professional employees, 
including academic personnel and teachers in elementary and 
secondary schools, while also maintaining current-law coverage 
of nonexempt (hourly) employees. This balanced and targeted 
approach would ensure appropriate access to breastfeeding 
accommodations while maintaining the FLSA's exemptions for 
certain unique jobs and industry sectors.
    The left-leaning Economic Policy Institute found in 2018 
that this framework would ensure access to workplace 
breastfeeding accommodations for more than 83 percent of women 
of childbearing age who are not currently covered.\19\ 
Moreover, Rep. Carolyn Maloney (D-NY), the sponsor of H.R. 
3110, introduced a bill in 2017 that included coverage of 
nursing-accommodation requirements for white collar employees 
but did not impose the sweeping and overly punitive structure 
found in H.R. 3110.\20\ By choosing to advance H.R. 3110, House 
Democrats have abandoned their workable and responsible 
approach in the 115th Congress in favor of a politicized scheme 
which is crafted to reward trial lawyers at the expense of 
sound public policy.
---------------------------------------------------------------------------
    \19\Heidi Shierholz, Econ. Pol'y Inst., Millions of working women 
of childbearing age are not included in protections for nursing mothers 
(Dec. 10, 2018).
    \20\See H.R. 3255, Supporting Working Moms Act of 2017, 115th Cong. 
(2017).
---------------------------------------------------------------------------
    Among several provisions prioritizing the improvement of 
working conditions for mothers over the interests of trial 
lawyers, the Foxx substitute amendment removes the excessive 
penalties included in H.R. 3110. The amendment preserves the 
authority of the Secretary of Labor to enforce compliance with 
the FLSA's breastfeeding accommodation requirements through 
injunctive relief, while also allowing for the assessment of 
civil monetary penalties for repeat and willful violators. 
Significantly, the amendment also protects small businesses 
from the threat of litigation and excessive costs by 
maintaining the 50-employee threshold for the undue hardship 
exemption under current law.
    In addition, the Foxx substitute amendment clarifies that 
individuals engaging actively in work during a nursing break 
are owed compensation for the time spent on such work. This 
approach ensures that nursing mothers receive the desired 
privacy while accounting for the nature of work in a modern 
office. Finally, the substitute amendment requires the 
Government Accountability Office (GAO) to issue a report to 
Congress evaluating the bill's implementation, the number of 
working mothers with access to accommodations, and the actions 
taken by the Secretary of Labor to enforce the bill's 
requirements.
    Unfortunately, Committee Democrats unanimously opposed 
Republican Leader Foxx's commonsense and workable approach to 
providing breastfeeding accommodations to working mothers, 
which was defeated on a party-line vote.

                               CONCLUSION

    Committee Republicans are strong advocates of flexible 
workplace policies that empower working mothers. Unfortunately, 
H.R. 3110 takes an overly broad and punitive approach which 
imposes unnecessary and confusing mandates on certain employers 
which, coupled with inflated penalties for alleged violations, 
will provide incentives for trial lawyers to file lawsuits 
against unsuspecting smaller businesses with the promise of big 
payouts. For these reasons, and those outlined above, Committee 
Republicans oppose the enactment of H.R. 3110 as reported by 
the Committee on Education and Labor.

                                   Virginia Foxx, Ranking Member.
                                   Joe Wilson.
                                   Glenn ``GT'' Thompson.
                                   Tim Walberg.
                                   Glenn Grothman.
                                   Elise M. Stefanik.
                                   Rick W. Allen.
                                   Jim Banks.
                                   James Comer.
                                   Russ Fulcher.
                                   Fred Keller.
                                   Mariannette Miller-Meeks, M.D.
                                   Lisa C. McClain.
                                   Scott Fitzgerald.
                                   Julia Letlow.

                                  
                                  
                                  [all]