In our recent blog post, we highlighted legislation that will impact employers this year related to nursing and pregnant employees: the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”) and the Pregnant Workers Fairness Act (the “PWFA”).  As this legislation becomes effective—with the PUMP Act taking effect on April 28, 2023 and the PWFA set to become effective on June 27, 2023—the Department of Labor’s Wage and Hour Division (the “WHD”) released a new bulletin concerning enforcement of the PUMP Act.

In the bulletin, the WHD emphasizes the PUMP Act’s increased scope, noting that it now applies to 9 million more employees not previously covered under the FLSA.  The PUMP Act requires employers to provide nursing employees with unpaid, reasonable break time every time the employee has such a need for one year after the child’s birth.  Importantly, the employee must be completely relieved from duty for the break to be unpaid.  For teleworking employees, employers must provide break time as if those employees were working on-site.  The WHD offered several examples of what could constitute “reasonable break time,” including an example of an employee who takes four 25-minute breaks each day.

These new accommodation obligations affect not only non-exempt (so-called “hourly” employees) but exempt (“salaried”) employees as well.  The WHD explains that, like non-exempt employees, salaried employees must be given reasonable break time and an employer may not reduce a salaried employee’s pay because she is taking these breaks.  Employers must also provide a suitable and “functional” location (not a bathroom) for pump breaks shielded from view and free from intrusion as well as a place to safely store milk.  Generally, an employer must furnish a locked door or sign to ensure the employee’s privacy.

The WHD also addressed retaliation which is prohibited under the PUMP Act. For instance, the WHD described as retaliatory an employer that asks an employee to work additional hours on the weekend to make up time spent during their pump breaks.

Lastly, the WHD discussed the various exemptions applicable to small businesses, air carriers, rail carriers, and motorcoach services operators.  Notably, small businesses (50 or fewer employees) seeking an exemption must show that compliance will require an undue hardship.  The WHD explains that undue hardship is analyzed on an “individual employee basis,” i.e., that the specific employee’s needs would cause an undue hardship in light of the size, financial resources, nature, and structure of the employer.  Small businesses should exercise caution in seeking an exemption as they will bear the burden of proving undue hardship.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020;, co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.