A. Nonexempt Employees under the FLSA

The FLSA requires that nonexempt employees be paid at least the federal minimum wage for all hours worked and overtime pay at not less than time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. The amount of pay employees are entitled to receive for a workweek cannot be determined without knowing the number of hours worked. In general, hours worked under the FLSA include all the time an employee must be on duty, or on the employer’s premises, or at another place of work, including a telework location, from the beginning to the end of their workday. As with other breaks under the FLSA, a nursing employee must be completely relieved from duty, or the time spent pumping must be counted as hours worked.

Example of Compensation Requirement, Nonexempt Employee:

• Julia is on a pump break when she receives a call on her work cell phone from a coworker who provides her with instructions regarding a work project. After she finishes the work call, Julia completes her pump break. Because Julia was not relieved from duty, the time she spent on the call must be counted as hours worked.

B. Exempt Employees under the FLSA

Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. To be exempt, employees generally must meet certain tests regarding their job duties and be paid at least a minimum weekly amount on a salary basis.

Being paid on a salary basis means an employee regularly receives a predetermined amount of compensation that is not reduced because of variations in the quality or quantity of the employee’s work. Subject to certain limited exceptions, an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. Therefore, when such salaried exempt employees take pump breaks, their salaries may not be reduced to reflect this break time.

For more information about the salary basis requirement generally, see WHD Fact Sheet #17G.

Other workers that are exempt from minimum wage and overtime protections, such as agricultural and certain transportation workers, are also newly eligible for the FLSA’s pump at work protections. To determine the impact of nursing employees’ pump breaks on their compensation, the requirements of the FLSA’s reasonable break time and space provisions must be read in conjunction with other applicable laws governing compensation.

Example of Compensation Requirement, Exempt Employee:

• Cameron is a salaried exempt administrative employee at an assisted living center who has a four-month-old child. Cameron takes three pump breaks a day. Cameron’s employer cannot deduct the time used for pump breaks from their salary.

A. Privacy

Employers must ensure the employee’s privacy, for example, by displaying a sign when the space is in use or providing a lock for the door. Employees who are teleworking receive the same protections, including the right to take a pump break that is shielded from view. For example, an employee must be free from observation by an employer provided or required video system, including a computer camera, security camera, or web conferencing platform, when they are expressing breast milk, regardless of the location they are working from.

B. Functional Space

The location must be functional as a space for pumping. A space must contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump. Employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator.

Ideally, spaces to pump breast milk should also include access to electricity, allowing a nursing employee to plug in an electric pump rather than use a pump with battery power, which may require more time for pumping. Access to sinks near to the space provided to pump so that an employee can wash their hands and clean pump attachments also improves the functionality of the space and may reduce the amount of time needed by nursing employees to pump breast milk at work.

C. Approaches May Vary

Employers may address space requirements in different ways. For example, an employer may designate a vacant office or storage room with a door that closes and covered windows, if any, for use by employees to express breast milk, or the employer may create space using partitions, provided that the employee using the space is shielded from view and free from intrusion from coworkers and the public. In either situation, the employer must ensure the employee’s privacy through means such as signage that designates when the space is in use, or a lock on the door.

Employers should take into consideration the number of nursing employees and their work schedules to determine whether more than one space should be designated or created. While the FLSA does not require that employers create permanent, dedicated spaces for employee pump breaks, some employers may choose to do so, for example, by providing a dedicated pumping room on each floor of a large facility. Other employers may choose to provide a large room with privacy screens between employees which may be used by multiple employees simultaneously to pump.

A. Exemption for Small Employers if Compliance Requires an Undue Hardship

Employers with fewer than 50 employees must demonstrate that compliance would impose an undue hardship to claim the small employer exemption from the pump time requirements of the FLSA. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

Whether compliance would be an undue hardship is determined on an individual employee basis. The employer bears the burden of proof that compliance with the pump at work provisions would be an undue hardship in the particular circumstances. To assert the exemption, an employer must be able to demonstrate that the employee’s specific needs for pumping at work is an undue hardship due to the difficulty or expense of compliance in light of the size, financial resources, nature, and structure of the employer’s business.

The employer bears the burden of proving that compliance with these provisions would be an undue hardship in any instance in which a nursing employee has the right to pump at work. Because the law requires only space and time for unpaid breaks for one year after a child’s birth, and the employer must be able to demonstrate “significant” difficulty or expense, employers will be exempt only in limited circumstances. WHD will evaluate each claim of undue hardship by 6 applying the statutory factors to the particular factual circumstances of a case.

B. Exemption for Crew Members of Air Carriers

Crewmembers of air carriers are exempt from FLSA pump at work protections. “Crewmember” means a person assigned to perform duty in an aircraft during flight time including pilots and flight attendants. The break time and space protections for pumping at work apply as normal to other employees of air carriers.

C. Rail Carriers

The PUMP Act delays coverage for certain employees of rail carriers. The delay applies to members of a train crew involved in the movement of a locomotive or rolling stock or employees who maintain the right of way of a rail carrier employer.

Beginning December 29, 2025, the break time and space requirements are applicable to these employees, unless compliance:

• Requires the employer to incur significant expense, such as through the addition of a member of a train crew in response to providing FLSA break time to pump, removal or retrofitting of seats, or the modification or retrofitting of a locomotive or rolling stock, or
• Results in unsafe conditions for an individual who is an employee who maintains the right of way.

As with the undue hardship exemption for small employers, these exemptions operate as an affirmative defense, for which the employer bears the burden of proof. It is not considered a significant expense to modify or retrofit a locomotive or rolling stock by installing a curtain or other screening protection.

The break time and space protections for pumping at work apply as normal to other employees of rail carriers and are not subject to the three-year delay.

D. Motorcoach Services Operators

Similar to the PUMP Act’s provisions affecting rail carriers, a three-year delay in coverage applies to employees of motorcoach services operators involved in the movement of a motorcoach.

Beginning December 29, 2025, the pump at work protections will apply to these motorcoach services employees unless compliance:

• Requires the employer to incur significant expense, such as through the removal or retrofitting of seats, the modification or retrofitting of the motorcoach, or unscheduled stops, or
• Results in unsafe conditions for an employee or passenger.

The exceptions described above operate as an affirmative defense, for which the employer bears the burden of proof. It is not considered a significant expense to modify or retrofit a motorcoach by installing a curtain or other screening protection if an employee requests such a curtain or other screening protection or for an employee to use scheduled stop time to express breast milk.

The break time and space protections for pumping at work apply as normal to other employees of motorcoach services operators and are not subject to the three-year delay.

A. Prohibited Retaliation

The FLSA provides protection for any employee “discharged or in any other manner discriminated against” because such employee “filed a complaint or instituted or caused to be instituted any proceeding” regarding the pump at work protections. Employees are protected regardless of whether they have made a complaint orally or in writing. Complaints made to WHD are protected, and most courts have ruled that internal complaints to an employer are also protected. Remedies for retaliation include employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.

Retaliation occurs when an employer, through a manager, supervisor, administrator or directly, fires an employee or takes any other type of adverse action against an employee for engaging in protected activity. Examples of protected activity include:

• Making a complaint to a manager, employer, or WHD,
• Requesting payment of wages,
• Consulting with WHD staff or cooperating with a WHD investigation,
• Exercising rights or attempting to exercise rights, such as requesting break time or space to pump, and
• Testifying at trial.

An adverse action is an action that would dissuade a reasonable employee from raising a concern about possible violation of engaging in other related protected activity. Retaliation can have a negative impact on overall employee morale.

Examples of Prohibited Retaliation:

• Alisha is a new parent who works at a call center. She uses her lunch break to express breast milk and needs additional time to finish pumping before she is able to return calls at her workstation. When she is late returning from lunch, her boss tells her that she cannot use any more time for “personal stuff.” When Alisha asks for another break for pumping later that day, her boss sends her home for the rest of her shift without pay.
  • In this example, Alisha was sent home for attempting to exercise her FLSA rights, which is retaliation by her employer and an FLSA violation.
• Charlie works in retail sales and is nursing their 8-month-old child. On Friday, their store manager tells them they must work an additional 3 hours on Saturday to be able to meet the employer’s sales quotas for the week due to the time they spent taking pump breaks during the week.
  • Charlie cannot be required to make up the time they took pump breaks because adding work time to their normal schedule could be considered an adverse action made in retaliation for exercising their pump at work rights. Additionally, their employer cannot hold the time they took for pump breaks against them when determining whether they met the sales quota.

For more information about prohibited retaliation, see WHD Field Assistance Bulletin No. 2022- 02.

B. Enforcement of the FLSA Pump at Work Requirements

To enforce the pump at work or retaliation provisions of the FLSA, an employe may file a complaint with WHD or may file a private cause of action seeking appropriate remedies.

There is no waiting time or special procedure for an employee or other party to:

1. File a complaint with WHD about violations of any PUMP Act protections, or
2. Bring a private suit to enforce the reasonable break time requirement.

An employee may can file a private suit regarding an employer’s failure to provide a space to pump, if the employee has notified the employer of the need for space and has allowed 10 days for the employer to come into compliance. The employee is not required to provide this notice:

• If the worker has been fired for requesting reasonable break time or space;
• If the worker has been fired for opposing employer conduct related to FLSA pump at work rights; or
• Where the employer has expressed a refusal to comply.