Employee Survival Guide® - Two Wins for Pregnant and Working Moms

Episode Date: October 10, 2023

What if there were laws to protect the rights of pregnant and nursing mothers at work? Well, get ready to expand your knowledge on the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA) that set the pace for better treatment of working mothers. Join us on this enlightening journey as we unravel the intricacies of these acts that mandate employers to provide reasonable accommodations to pregnant and postpartum workers, and ensure nursing mothers get ample break times and a private space to express breast milk. We'll delve into the key victories these laws represent for an overwhelming 9 million nursing mothers in the workplace- a ray of hope in the daunting task of juggling motherhood and work.Our conversation doesn't end there. We'll dig deeper into how you, as a working mother, can leverage these acts to your benefit. From the importance of written requests for accommodations to maximizing protections through interactive processes, we've got you covered. However, it's not just about knowing your rights, it's also about holding employers accountable. So, we also shed light on the process of filing a complaint for non-compliance. Moreover, we put a spotlight on the urgent need for comprehensive paid leave policies in the US, to ensure that no mother has to choose between her job and her newborn. Wrapping up, we touch on a crucial yet often overlooked aspect of a successful business - employee engagement, loyalty, and trust. So get ready for an insightful episode packed with practical advice, informative discussions, and thought-provoking conversations about the world of working moms.Links:Providing Urgent Maternal Protections for Nursing Mothers Act Filing Complaint under PUMP ActPregnant Workers Fairness ActFiling Complaint under PWFA2019 PEW Research Report: Among 41 countries, only U.S. lacks paid parental leaveNYTimes Article: The World ‘Has Found a Way to Do This’: The U.S. Lags on Paid Leave If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you, as always, what your employer does definitely not want you to know about and a lot more. It's Mark and welcome back to the podcast. Today we're talking about two wins for pregnant and working moms. This topic is actually really important to me, and I've dealt with for many, many years. In fact, probably over now, close to three decades, which is really amazing. It's involving gender discrimination in pregnancy and the rights of women under those circumstances while working.

I've litigated many cases like this. I've settled many cases like this. And it's just one of those areas of work that you, in doing what I do, as an employment litigator, you can't help but just want to take the stand for women to protect them because what you see and happen to women is just right downright, you know, inhumane and it's just not right. Everybody has a mother, so it's just counterintuitive. But nonetheless, pregnancy discrimination is one of the largest areas that the Equal Employment Opportunity Commission deal with, and it is one of the reasons behind many of the new statutes we have in place. So without further ado, let me get into the podcast episode. Pregnant and working moms scored two big victories recently. The first on December 29th, 2022, when the Providing Urgent Maternal Protections for Nursing Mothers Act, or PUMP Act, became law and finally extended protections to almost 9 million working nursing mothers across the United States.

Not only did this law extend the right to pump at work, but it also allows additional remedies for employer violations. The Pump Act amended the Fair Labor Standards Act, the FLSA, which also covers things such as your wage and hour issues, and requires employers to provide nursing mothers with reasonable break times in a private space other than the bathroom to express breast milk. And I will say that in cases I've dealt with over the years, that private space has been the filthy closet. And it happened more than a few times that the mail managers would assign a breast pumping area that was private, but it was typically a closet or some dingy place. It was just kind of ridiculous. That was kind of like a punishment. But nonetheless, if you can imagine a dingy closet filled with cleaning supplies and broomsticks and whatever, that's what these spaces were provided.

If you didn't have that, I'm sorry, but some people, clients I've dealt with, had that situation happen. Nonetheless, the PUMP Act also put on notice or put the onus on employers to comply with the law, alleviating one less stressor on an already overburdened mothers who must carry out not only the weight of caring for the child or children, but for themselves. The second victory, the long-awaited Pregnant Workers Fairness Act, or PWFA, went into effect on June 27, 2023. This law requires employers to provide, quote, reasonable accommodations, end quote, to pregnant and postpartum workers. This will make it easier for those workers who often feel the pressure to leave the workforce to stay and continue working.

in the right direction for working mothers who are often overworked, overlooked, penalized once they have a child. So it's a major step in the right direction to provide accommodations to women. And it was a burden beforehand to get employers to do just about anything for a woman who's dealing with pregnancy issues and postpartum care, I get that employers provided a maternity leave absence, and it may be interpreted as an accommodation, but oftentimes employers push back on women regarding their rights. Did all employers do this? Did they all push back? And I can't say that.

I think the evidence is in the fact that we have a statute that says this was bad enough that Congress said we need to do something. So it's better to be over-inclusive on statutes to provide more clarification about what employers can and cannot do and what employees have rights to do. So it's better in that situation than not. The shift in the law is a welcome change, given the U.S. is one of the share of women or share of moms who are working either full or part-time in the United States has increased over the past half century from 51% to 72%. And almost half of two-parent families now include two full-time working parents. At the same time, fathers, virtually all of them who are working, are taking on more child care responsibilities, end quote. So what exactly has changed? The Pump Act expands the reach of the FLSA to cover almost

all workers, with the exception of certain airlines, railroads, and motor coach carrier employees. Employers with fewer than 50 employees can take advantage of the undue hardship exemption. Sometimes there are statutes that do that in terms of giving a number of employees kind of a hall pass that you don't have to comply. And the exemption is a significant difficulty or expense for the employer. However, employers with 50 or more employees do not have that option, and the Pump Act applies. employees do not have that option, and the Pump Act applies. So the Pump Act also made clear that pumping time counts as time worked when calculating minimum wage, and overtime when a worker is not completely relieved from work duties during the pumping break. So that's good news for

women who are engaged in pumping while working. That's also commenced or compensated time. pumping while working, that's also commenced or compensated time. As noted above, the PWFA only applies to accommodations such as additional break times to use restrooms, eat or drink, rest, taking a leave or time off to recover from childbirth, or being excused from certain activities that are not safe for pregnant workers. Think of like working in mines or industrial sites while pregnant. However, there are other laws that make it illegal to discriminate against women due to pregnancy, childbirth, and other related medical conditions. The PWFA covers the entire timeframe.

This is important for, you know, understand, from the pregnancy to the postpartum recovery. Before, we had to bootstrap other laws to cover the postpartum, like such as like Title VII for gender discrimination. Here we have now a statute that covers the pregnancy through the postpartum. That would include accommodations for fertility treatments, morning sickness, which most women know is not limited just to the morning. Private and public sector employees with at least 15 employees are covered by this new law. The PWFA finally closed the gap of existing law. Before the PWFA, workers could not get an accommodation if they could prove that another employee was given an accommodation.

Sorry, they could only get an accommodation if they can prove other employees. It's kind of a circular loop, but nonetheless, that was the prior law, which was not conducive and it was confusing. Now, as long as the worker is pregnant or postpartum, they can request an accommodation, making it much clearer. It is important to know that the PUMP Act and the PWFA are the minimum an employer has to do, but your state and other federal laws may provide greater rights and you would benefit from them all. What does this mean for you? Under the PUMP Act, if you are covered by the FLSA, you are most likely eligible to pump at work, including remotely, for one year after birth of your child.

This would cover both full and part-time workers. Under the law, you have the protected right to have a reasonable break time to pump at work as needed, and your employer cannot deny it. The duration and frequency of the pump break will vary by person, and an employer cannot limit this. Time for a pumping break includes getting to the pumping area, setting up your pump, pumping itself, cleaning of the pump equipment, and getting back to your work area. Under the law, nursing mothers are entitled to this protected time. So it would be in the employer's best interest to provide an area close to the working area with amenities such as a sink that a nursing mother will use or need to pump

and then get back to work, a win-win. Under the PWFA, you would need to request an accommodation, and it should be in writing. Everything should be in writing. If you haven't listened to me for long enough, I mean, document everything. Email, timestamps, probably the best. You know, email the HR. I need an accommodation for breastfeeding, and I'd like to have a private room, and it's all documented. Can you respond back in a couple days?

Thank you very much. To maximize your protections, the earlier the better. Once the request is made, the employer must have a good faith conversation to discuss the request accommodations to meet the worker's needs, which is formally called the, quote, interactive process. I'll let you know that this has been borrowed from the Americans with Disabilities Act, which also requires an interactive process to discuss accommodations. And I want to make clear, what is that interactive process? Well, just imagine you and I are sitting in the same room together.

I'm the supervisor and you're the employee. And you ask me for accommodation for breastfeeding. And I say, OK, well, what do you need? And I'll say, well, you can tell me what you need. And OK, and this is what we have to offer at this company. We use a private room. We have, you can feel, you feel – here it is and show you. Basically, a normal adult-like conversation where there's an ebb and flow, give and take.

What you don't want to have is a conversation where somebody is saying no to you, that they can't provide it to you, or if they're stalling or they're delaying or they're just not responding to your request. That is not an interactive process. So those are your distinctions between an adult-like conversation, like you would talk to a family member or your spouse or whatever. And the opposite is that they just don't respond to your request and ignore it and just delay it. This process would remove the onus on the worker, you. lay it. This process would remove the onus on the worker, you. Again, a welcome change to giving everything else a pregnant and a new mother must carry because it's a lot of, you know, you know you're under a burden of what you're going through and the time period should be less stressful than more stressful. And I can tell you for a fact, I've seen many cases where it's very, very stressful. And a very serious

medical consideration is that when you apply stress, work-related stress, to a woman who's obviously pregnant, you are going to create risks, medical risks, by that stress. And we all know what we're talking about, but it does happen. And you can get into a situation where you are in a premature labor situation and you want to avoid that. So stress is a factor to be avoided. Again, one of the reasons why they put this act into play. How is it enforced? Employers have the burden to comply with the pump act or show an undue burden and undue burden is a phrase that, you know, it's a legal phrase. I don't really enjoy, but I have to use it, but it basically says that an undue burden. An undue burden is a phrase that, you know, it's a legal phrase I don't really enjoy, but I have to use it.

But it basically says that an undue burden means that it's too expensive to provide you a private room. It's too expensive to have you walk away from your workstation to do something or something, you know, financial relationship typically, but not necessarily financial. And it's an employer's burden to factually demonstrate that, not just claim in conclusory fashion, sorry, we can't do that for you. They actually have to go further than that. And you should press them further in email exchanges to exhaust them about why it's on their undue burden, get past the simple no answer. So if your employer is not in compliance, you have the option of A, to file a complaint with the Department of Labor or file a lawsuit within two to three years, uh, if it's willful. Um, three years is the operative, uh, statute of limitations for an FLSA claim for a willful

violation. If without, if it's not willful, you have two years to file it. The PUMP Act also prohibits employers from retaliating against mothers who request a PUMP at work. A successful complaint may result in recovery for lost wages, attorney's fees, and or punitive damages and for emotional distress damages or health complications. Again, stress during pregnancy and complications. So complaints also be related to violations of the PWFA would go through the U.S.

Equal Employment Opportunity Commission, the EEOC, and I'll have links on my show notes where you can follow the links regarding the statutes and where you can file complaints with both federal agencies, the Department of Labor, and also the EEOC. Two steps forward. The PUMP Act and the PWFA are two big steps in the right direction for families. However, there is far more to be done. According to a recent New York Times article, the U.S. is one of six countries with no national paid leave. And you've heard this topic before in political discussions or on the news, whatever.

We don't have one. States, I believe there's anywhere from 13 to 15 states that have paid feminine medical leave. I know Connecticut has paid feminine medical leave. Further, they report, quote, research shows babies continue to benefit from being home with a parent for the first half year or bonding, increasing immunization and breastfeeding rates, decreasing hospitalizations from infectious diseases. End quote. The time to recover from childbirth and to spend time with your child is invaluable. Having an understanding and supportive employer is a big driver in a mother's ability to feel confident in returning to work and to stay there. These new laws help push employers in that direction, whether they want to or not. Now, I just want to just add some editorial to the end of the podcast episode because I usually do it. I start to think about the subject and I get pretty revved up.

I believe we're entering a stage where because women are a – well, actually, they're a predominant feature in terms of the percentage of workforce. I mean, there's more women working than are men. And this is – and employers are aware of this. At the same time, employers are engaging in the fear-mongering behavior that they're already used to, and they manipulate the whole process and get you to kind of toe the line. They realize that a couple things are happening, and you need to realize that. All the baby boomers have exited stage right, if not all of them. So you have a workforce that's predominantly filled with women, and we know that they're not in the executive level and C-suite. Okay, we're working towards that. But what employers have to deal with is a large population of working women, and a large measure of them become obviously pregnant because that's what happens. And

they have the right to have and raise a family. Employers now are realizing the invaluable resource that women bring to the table that generates what for companies? The profit. And they have just somebody put a book across the top of the head like, duh, you know, only because they're now in a situation where they need to cajole women at every level. So, you know, young working individuals, not yet married, et cetera, females to all the way to the aspect of women who are going through menopause. Well, companies now are thinking about trying to provide services to that wide contingent of women, not because they're being nice, because they have to. They've realized that they have to cater and cajole, not cajole, but to give more, not preferential treatment, but do the right thing.

Let's put it that way for lack of a better phrase. And it's a real thing happening. If you're looking at this the way I'm looking at it and seeing and reading every day as I am, you have this power and you're now seeing this power happen through two statutes, the PUMP Act and the PWFA that are occurring. I understand they're occurring through and during the Biden administration. I'm not making a political statement. It's not a political at all. This Congress has passed these statutes. Our democracy has worked to create statutes that benefit women. And there's a larger issue at play, and that's basically servicing and providing services and to, and protect the rights of women while they're working. And employers realize they just can't engage in the same old, same old fear-based management tactics in the past. There's, I've read recently in a book that, you know, employers describe, you know, we're a team, not a family. And I think you're having a shift from we're a team, not a family. And I think you're having a shift from we're a team, not a family to a more of a blend into a family and given this kind of

comforting that's occurring through addressing issues that are, you know, their employees are going through it. So I think you're in this new movement that's happening. I'm not going to give it a label, but women are getting many more protections. These are two examples of that happening. And the other example, which I've done a podcast on as well, is the menopausal rights that women have as well, which did fall under Title VII gender discrimination aspects. But you may, and just wait, you may have a statute that would cover that aspect. I know that if you're following the menopausal issue, England has a very strong approach to this issue and provide protection for workers. So that is the larger concept that's happening in the face of what I've described to you and that the employers are now having to really

realize that just the same old style of management doesn't work any longer. And as I said before, in many of the podcasts, the employees are, they do have a higher leverage with their employers. And I think employers are realizing that. And these are, you have to look at this and look at the lines between to figure out what's actually taking place. And I'm trying to do that in the podcast for you because I'm seeing it. I'm seeing the cases I have. I'm seeing what I'm reading.

So there you have it. It's a remarkable set of circumstances that bring your attention to. So I hope this is valuable for you. And obviously, I'm always looking for these stories and concepts to bring to your attention. But there's a theme that I'm always linking them to. And I think you get that too, that there's something about us that's different these days. And I think we all know what that is. And no one's wanting to label it, but I'm going to label it. I'm going to tell you what it looks like and what it's going to be. And maybe we can craft a future that actually exists in reality where women do, in fact, have rights that are protected all the way through the process and workers in general.

So the same old school management philosophy of we're a team, not a family, it's out the door. It's more of you're not a system and you're part of, and you're not a system and you're part of something. You're not a number. You're part of something. And your employer and your manager care and, you know, no more performance improvement plans and no more junk science management stuff that they throw at you. You know, there's more of a care because research shows. I mean, research shows that if more employees are engaged and more loyal and trusting of their employers, guess what happens? More profit.

It's just the dumbasses of the VC community and otherwise don't yet get it, okay? I mean, I said VCs because the VC community is just notorious for bad behavior related to a poor work culture. But large companies, they don't really get it either. And they're trying to manage a larger population of people. I get that. It's hard to do, but you don't have to lose sight. And I'm about to read a book about the founder of Patagonia. He wrote a book and I encourage you to do the same.

It's really about how he cares about his employees and created a work culture that is never changing. And he really does care about employees. So more of that later, but I just wanted to share these concepts for you today to allow you to sink in. I'll put the links in the show notes for you, and have a great day. If you like the Employee Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely, that you can actually use and solve problems on your own and at your employment. So if you'd like to leave a review anywhere you listen to our podcast, please do so.

And leave five stars because anything less than five is really not as good, right? I'll keep it up. I'll keep the standards up. I'll keep the information flowing at you. If you'd like to send me an email and ask me a question, I'll actually review it and post it on there. You can send it to mcaryu at capclaw.com. That's capclaw.com.