[House Report 117-102]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 117-102
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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).
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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.
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\3\42 U.S.C. Sec. 2000e.
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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\
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\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.
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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\
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\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.
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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\
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\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.
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Yet, women often face barriers to pumping breast milk in
the workplace.\13\ Dina Bakst, testifying at the 2021 Joint
Subcommittee Hearing, explained:
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\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\
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\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\
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\15\Kozhimannil, supra note 10, at 5.
\16\Kozhimannil, supra note 10, at 3.
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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\
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\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).
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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\
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\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/.
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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\
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\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.
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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.
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\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.
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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\
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\35\Smith-Gagen, supra note 26, at 2040.
\36\Bakst Testimony at 17.
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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.
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\37\Pub. L. No. 111-148, 124 Stat. 577.
\38\29 U.S.C. Sec. 207(r).
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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\
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\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).
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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\
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\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).
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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\
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\48\Id. at 80075.
\49\New York State Department Of Health, supra note 26, at 9-13.
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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.
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\50\Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. at
80075.
\51\Id. at 80076.
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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\
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\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).
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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\
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\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).
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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.
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\61\Morris, supra note 13, at 17.
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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.
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\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).
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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\
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\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.
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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\
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\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.
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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\
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\73\29 U.S.C. Sec. 216(b).
\74\Smith-Gagen, supra note 26, at 2039.
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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.
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\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].
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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\
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\76\Salz v. Casey's Mktg. Co., No. 1 l-CV-3055-DEO, 2012 WL
2952998, at *7 (N.D. Iowa July 19, 2012).
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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.
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\77\Morris, supra note 13, at 7.
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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\
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\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.
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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.
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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.
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\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.
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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\
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\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.
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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.
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\1\29 U.S.C. Sec. 207(r).
\2\Pub. L. No. 111-148 (2010).
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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\
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\3\29 U.S.C. Sec. 213.
\4\Id.
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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:
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\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\
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\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
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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\
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\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).
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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\
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\8\29 U.S.C. Sec. 216(b), (e)(2).
\9\29 U.S.C. Sec. Sec. 215(a)(3), 216(b).
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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\
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\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\
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\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.
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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.
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\13\Letter from Kevin Kuhlman, Vice President, Nat. Fed. of Indep.
Bus., to Reps. Bobby Scott & Virginia Foxx (May 26, 2021) (on file).
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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.
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\14\29 U.S.C. Sec. 207(r)(2).
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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.
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\15\H.R. 3110, 117th Cong. Sec. 2(b)(2).
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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\
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\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:
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\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\
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\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.
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\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).
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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]