Booby Traps Series: Federal pumping law leaves out millions of moms

Businesswoman Holding a BabyIf you expect to be pumping at work and want to know your rights, there is good news and bad news.

The good news is that one of the provisions of the Affordable Care Act, also known as “Obamacare” requires that, effective March, 2010, employers provide break time and a private non-bathroom place for nursing mothers to pump breastmilk during the workday, for one year after their child’s birth.  This was obviously a very welcome development for many moms.

The bad news is that the provisions of the law related to pumping were (reportedly unintentionally) added to the Fair Labor Standards Act (FLSA), limiting their effect to “hourly” employees, generally meaning employees who do not receive a salary.

This leaves out a lot of mothers.  An estimated 12 million moms, according to the U.S. Breastfeeding Committee.

This difference in rights, in the words of the U.S. Breastfeeding Committee, “was unintentional and is causing confusion for employers and employees alike.”  (For help determining whether you are covered, you can call the Department of Labor’s Wage and Hour Division at 1-866-487-9243, and ask for the Fair Labor Standards Act Advisor.)

breastfeeding law Fortunately some mothers not covered by the Affordable Care Act are covered by state laws.  Some states provide pumping rights that are as strong or stronger than federal law and cover more employees.  Mothers who live in those states have rights under whichever law is stronger.  But currently only about half of the states have workplace pumping laws, leaving moms in the other half who are not covered by the FLSA out of luck.

To rectify the inequity in federal law we’re encouraging support for the Supporting Working Moms Act, which would extend these pumping right to all employees.  To voice your support, use the U.S. Breastfeeding Committee’s site to ask your representative to become a co-sponsor of this legislation.

Another question is whether or not there is a penalty of some kind for employers who do not comply.  An enforcement action a few years ago by the Department of Labor would seem to indicate so, but there remain questions about what kind of violation would result in a penalty, and what that penalty might be.  A new suit filed by the ACLU on behalf of a Pennsylvania glass factory worker may provide some answers.

If you do feel that your employers is not complying with the law, we’d encourage mothers to contact the Department of Labor.

So, when it comes to workplace pumping law, there is good news and bad news.  We hope that we’ll have more good news to share soon.

For more detailed information about your breastfeeding rights, please see the website by acclaimed national expert Jake A. Marcus, JD.  

Have you been able to use your rights under federal law?  Are you a salaried employee and not able to take advantage of them?  Did your employer provide the break time and space you needed?


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2 Comments | Last revised on 11/07/2013

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