Written Testimony of Melvina C. Ford Senior Policy Advisor Wage & Hour Division U.S. Department of Labor

Meeting of February 15, 2012 - Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving Responsibilities

Good morning. My name is Melvina Ford, and I am the Senior Policy Advisor to the Wage and Hour Administrator at the U.S. Department of Labor. The Wage and Hour Division is responsible for enforcing some of our nation's most comprehensive federal labor laws on topics, including, but not limited to, the minimum wage, overtime pay, recordkeeping, migrant workers, worker protections in certain temporary worker programs, and the prevailing wages for government service and construction contracts.

I would like to thank Chair Berrien and the Commission for inviting me to speak with you today. The Secretary of Labor came to the Department with a vision of Good Jobs for Everyone. That vision includes improving workplace flexibility policies and promoting equal opportunity and economic security for the most vulnerable workers among us. The Secretary has a long history of advocating for such policies, and her commitment shows both in the Wage and Hour Division's renewed focus on the Family Medical Leave Act (FMLA) and our undertaking of enforcement of the new nursing mothers break time law.

FAMILY MEDICAL LEAVE ACT

Basic Summary of the Law

The U.S. Department of Labor's Wage and Hour Division (WHD), administers and enforces the FMLA for all private, state and local government employees, and some federal employees. See 29 C.F.R. § 825.100 et seq. Most federal and certain congressional employees are also covered by the law and are subject to the jurisdiction of the U.S. Office of Personnel Management or the Congress.

Coverage: FMLA applies to employers who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers. See 29 C.F.R. § 825.104, 825.105.

Leave Entitlement: Under FMLA, eligible employees are entitled to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons, including pregnancy, childbirth, or the adoption or placement of a child; to care for a spouse, son, daughter, or parent with a serious health condition; to take medical leave when the employee is unable to work because of a serious health condition; or for any "qualifying exigency" arising out of the fact that a covered military member is on covered active duty, or has been notified of an impending call or order to covered active duty. Id. at § 825.200.

The FMLA also allows eligible employees to take up to 26 workweeks of job-protected leave in a "single 12-month period" to care for a covered servicemember with a serious injury or illness. See U.S. Department of Labor Wage and Hour Division Fact Sheet #28A: The Family and Medical Leave Act Military Family Leave Entitlements (Revised February 2010).

Job Restoration & Maintenance of Health Insurance Coverage: While on FMLA leave, the employer is required to maintain group health insurance coverage for the employee. And the employee is entitled to be restored to the same or equivalent job upon his or her return from leave. Id. at § 825.211- 825.215.

Notice to Take Leave & Medical Certification: To assert FMLA leave, generally an employee is required to provide 30-days advance notice, if the leave is foreseeable, and, if not, then notice must be provided as soon as practicable under the facts and circumstances. And the employer may require medical certification in support of FMLA leave for a serious health condition affecting the employee or a covered family member, or to care for a covered servicemember with a serious injury or illness. Id. at § 825.302 - 825.310.

Unlawful Acts: It is unlawful for any employer to interfere with, restrain, or deny the exercise, or attempted exercise, of any right provided by the FMLA. The prohibition against interference includes discriminating or retaliating against an employee or prospective employee for exercising FMLA rights. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA. Id. at § 825.220.

Filing a Complaint & Remedies: WHD investigates complaints of FMLA, and if violations cannot be satisfactorily resolved, the U.S. Department of Labor may bring action in court to compel compliance. Id. at § 825.401.

Individuals may also be able to bring a private civil action against an employer for violations. In a successful action, an employer may be liable to the affected employee for damages equal to the amount of wages, salary, employment benefits or other compensation denied or lost to the employee by reason of the violation. In a case where no wages or benefits have been denied or lost to the employee, the employer could be liable for any actual monetary loss incurred by the employee because of the violation. This includes out of pocket expenses such as the cost of providing care to a family member. An additional amount equaling these sums may also be awarded as liquidated damages. Other remedies include job reinstatement and promotion. Employees may also recover attorney's fees and costs. Certain limitations apply for suits filed by state employees.

An employee is not required to file a complaint with WHD prior to bringing such action. The filing of a complaint with WHD does not stop the running of the two-year statute of limitations (three years in the case of a willful violation).

Enforcement Data

WHD has over 50 District Offices and a little more than 1000 investigators located throughout the country. All investigators are trained to conduct investigations under all the laws WHD enforces, including the FMLA.

In addition, each District Office has at least one "technician" who is trained in answering telephone inquiries about the FMLA and who, in some instances, may attempt an early resolution of some FMLA complaints.

For FY 2011, WHD received over 2,200 FMLA complaints alleging FMLA violations and resolved over 2,100 complaints. The resolved complaints included more than 850 cases involving terminations, more than 500 allegations of refusal to grant leave, more than 200 allegations of refusal to reinstate to equivalent position, more than 500 cases involving allegations of discrimination (or retaliation) for exercising FMLA rights, and approximately 40 cases alleging the failure to maintain health benefits. In addition, in the more than 2,000 cases resolved, WHD found violations in approximately 40% of the cases, impacting approximately 900 workers directly.

In comparison, the Department's FMLA survey in 2000 showed that over 80 million employees in the U.S. work in covered establishments and meet the eligibility criteria of the FMLA. Thus, the disparity between the number of cases WHD has the capacity to resolve and the number of workers impacted by FMLA compliance is too large and the Department will never be in a position to hire enough investigators to reach a critical mass of these workers.

WHD is now considering ways to impact compliance with FMLA on a larger scale to ensure that more workers can effectively balance the needs of their families, their health and their jobs.

Looking Ahead

FMLA Strategic Enforcement Roundtable: In July 2011, WHD hosted a roundtable discussion for the Department of Labor focused on the strategic enforcement of FMLA. Your Chair, Jacqueline Berrien, spoke at the roundtable, Commissioner Lipnic attended, and other members of the EEOC staff helped to plan and participated in that roundtable because of your special role in protecting and promoting equality and economic security for working families.

At the roundtable, participants indicated that they were already seeing a dramatic rise in FMLA claims due in large part to women's increasing involvement in the labor force and, in particular, their increased contribution to family income, along with an upward trend of working elder caregivers. The participants also indicated that they were finding the most violations in whole sale and retail industries and companies with a workforce made of more than ¾'s of hourly paid workers. Participants also expressed particular concern with the ability of low-wage and vulnerable workers to access FMLA leave, and indicated a need to increase employee awareness of FMLA rights generally, how to access FMLA leave, and the protection from retaliation provided under FMLA.

Enhanced Capacity: Over the last two years, WHD has focused on increasing the capacity of our investigators to do effective investigations in all of the laws we enforce, including FMLA – equipping our investigators with blackberries and laptops to encourage more on-site investigations and adding significant language capacity. In addition, to enhance our FMLA capacity for enforcement, we produced two new videos to train our field staff on effective techniques for complaint intake and investigation procedures.

Strategic Enforcement & Litigation: WHD is currently exploring strategies to maintain employer compliance, which means keeping an investigated employer in compliance in the future, and strategies to sustain compliance, which means getting beyond an investigated employer and leveraging resources outside of WHD to deter other employers from violating the law.

One of the goals of enhanced FMLA enforcement is to be more strategic in the development of cases to litigate, such as cases that involve systemic policy issues or ones that involve issues about which we believe the Department's voice should be heard.

The Department already has an active amicus program and has participated as amicus in several important cases over the life of FMLA. For example, the Solicitor recently argued for a mixed motive analysis of FMLA retaliation cases in Breeden v. Novartis Pharmaceutical Corporation in the D.C. Circuit Court of Appeals. We hope to expand our participation in this area and believe that in appropriate cases amicus participation can present a unique opportunity for collaboration between federal agencies.

Know Your Rights & Compliance Assistance: WHD is in the process of updating the Department's FMLA e-laws system to reflect current FMLA regulations. The new system is currently in the testing phase. In addition, we are working to produce a guide to advise employees about their basic rights and protections under the FMLA.

Moreover, WHD field staff at the Regional and District office levels regularly participate in outreach to employees and employers at events designed to educate the public about the FMLA, typically conducting more than 20 FMLA outreach and stakeholder events a year.

Finally, we are currently exploring the use of social media tools, such as YouTube and blogs, to make sure that in the future we continue to share information where workers will actually see and hear it.

Policy: In 2010, the Department clarified the definition of what it means to be a "son or daughter" under the FMLA, ensuring that employees have the same rights to FMLA leave to care for a child they provide day-to-day care for without a legal or biological relationship as does a biological or adoptive parent. As a result, an employee who will co-parent a same-sex partner's biological child may take leave for the birth of the child and for bonding. Additionally, an employee may now take leave to care for his grandmother with a serious health condition, if she parented him, and a daughter of a same-sex partnership may take leave to care for her non-adoptive or non-biological parent.

On January 30, 2012, the Department announced that it intends to publish a Notice of Proposed Rulemaking to implement and interpret recent statutory amendments that expand the military family leave provisions in the FMLA and incorporate special eligibility provisions for airline flight crew employees. Finally, the Department will soon begin collecting data with two new FMLA surveys to better understand the need for and the experience with FMLA from both the employee and employer perspectives. The study will help the Department by providing information on current workplace policies and practices related to FMLA. In addition, for first time, as a part of the American Time Use Survey, Bureau of Labor Statistics will gather data on a wide diversity of workers' access to and use of leave beyond the FMLA in order the better understand how workers are balancing their work/life needs. We hope the information generated from these efforts will better inform our outreach efforts, publications, interpretative guidance and enforcement policies and shape future regulatory priorities based on sound data so that the FMLA is better and more effectively utilized.

NURSING MOTHERS BREAK TIME LAW

For nursing mothers, our WHD is enforcing the new "break time" law. The law ensures that women who choose to breastfeed their infants have the ability — and privacy — to express milk for their child after they return to work.

Background

The Affordable Care Act, P.L. 111-148 § 4207, amended section 7 of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(r), to require employers to provide nursing mothers with reasonable break time and a private space for expressing breast milk while at work. The new law reflects the reality that in today's workforce, many women are combining caregiving responsibilities with work. The nursing mothers law will enable many of these women to continue breastfeeding their child after they return to work by ensuring that they have break time and a space for expressing milk while at work.

The nursing mother break time requirement became part of the FLSA when the Affordable Care Act was signed into law in March 2010. The WHD has been providing compliance assistance and enforcing the law since that time.

Request for Information (RFI)

In December of last year, the WHD published a Request for Information (RFI) in the Federal Register and had a comment period of 60 days in which over 1850 nursing mothers, and employee and employer representatives submitted comments in response to the questions posed in the RFI. See Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. 80073 (Dec. 21, 2010), found at https://www.govinfo.gov/app/details/FR-2010-12-21/2010-31959 The RFI provided the Department's preliminary interpretations of the law and sought public comment on a number of issues. WHD consulted with public health officials at CDC and the Health Resources and Services Administration in developing the RFI.

Coverage—Who Does the Law Cover?

The break time for nursing mothers provision was added to the FLSA, therefore it applies only to employers who are covered by the FLSA. Over 7million employers in the U.S. are covered by the FLSA. See Comprehensive FLSA Presentation, http://www.dol.gov/whd/flsa/comprehensive.ppt#262,5,Coverage, accessed July 20, 2011. Because of the way the law was drafted, it applies only to workers who are not exempt from section 7 of the FLSA, which includes overtime pay requirements. See Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. 80073, 80074. Nonetheless, the Department hopes that employers will provide this right to all workers, regardless of status under the FLSA.

In fact, some employers are already required to provide nursing mothers breaks under state laws. Over 20 states have passed laws related to workplace lactation. See National Conference of State Legislatures, State Breastfeeding Laws, https://www.ncsl.org/health/breastfeeding-state-laws, accessed July 20, 2011. To the extent that state laws provide greater protections to nursing mothers than the federal law (for example, requiring break time for all workers regardless of FLSA status, requiring paid break time, etc.), they are not preempted by the federal law. See 29 U.S.C. § 207(r)(4).

Break Time

Covered employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother for up to one year after the birth of her child. Id. at § 207(r)(1).While the law states that the break time does not have to be paid, id. at § 207(r)(2), the Department has clarified that if the employer already provides paid break times, an employee who uses that break time to express milk must be compensated for that time in the same way that other employees are compensated for the break time. See WHD Fact Sheet #73: Break Time for Nursing Mothers under the FLSA, http://www.dol.gov/whd/regs/compliance/whdfs73.htm. The RFI lists the various factors employers should consider when determining what constitutes a reasonable time: see Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. 80073, 80075.

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• Time it takes to walk to and from the lactation space and the wait, if any, to use the space;
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• Whether the employee has to retrieve her pump and other supplies from another location;
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• Whether the employee will need to unpack and set up her own pump or if a pump is provided for her;
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• The efficiency of the pump used to express milk;
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• Whether there is a sink and running water nearby for the employee to use to wash her hands before pumping and to clean the pump attachments when she is done expressing milk, or what additional steps she will need to take to maintain the cleanliness of the pump attachments;
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• The time it takes for the employee to store her milk either in a refrigerator or personal cooler.

Space

Employers are also required to provide a space for the nursing mother to use to express milk. The law specifies that the space cannot be a bathroom. The space must be "shielded from view" and "free from intrusion" by others, in other words, a private space that could be used by the nursing mother to express milk. See 29 U.S.C. 207(r)(1)(b). As long as the space meets these requirements, employers may temporarily create or make available a space for use by the nursing mother. See supra note 11. Some of the space issues WHD sought input on in the RFI included: see Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. 80073, 80076.

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• Whether, and under what circumstances rooms that adjoin women's bathrooms, such as anterooms or lounges, could be compliant with the law;
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• Whether and under what circumstances locker rooms could be compliant with the law;
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• Examples of how employers have created shared space arrangements (i.e., at a mall or retail shopping center), or how employers have provided space for mobile workers.

Approach to Implementation

At this time, the Department does not intend to issue regulations, in part because we recognize that due to the wide variety of work settings, work schedules, and the individual needs of nursing mothers, regulations may not be the most effective way to issue initial guidance to employers and employees.

The Department recognizes that there are many different kinds of work settings and work schedules and that the individual needs of a nursing mother will vary. For example, many of the nonexempt workers covered by this provision work in retail settings, restaurants, factories, or other environments where unused space may not be readily available. For these reasons, the Department expects that employers may need to be creative and consult with employees in order to meet their obligations under the law. It is unlikely that there will be a single approach that works for all employers or nursing mothers.

The Department has been consulting with other federal agencies such as HHS, CDC, EEOC, as well as non-governmental organizations with expertise in workplace lactation issues, about how best to help employers and employees develop solutions that comply with the law.

Undue Hardship Exemption

The law provides an "undue hardship exemption" for employers with fewer than 50 employees who can demonstrate that compliance would pose significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business. See 29 U.S.C. § 207(r)(3). This is not an automatic exemption for small employers. The way the law is drafted, employers would have to demonstrate that they meet the undue hardship factors as outlined in the statute (listed above). Also, the Department has explained that for purposes of determining whether an employer has 50 or fewer employees, all employees will be counted, regardless of work site. See supra note 11. The RFI provides a more detailed discussion of this provision. See Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. 80073, 80077-78.

Enforcement

The WHD is charged with administering and enforcing the FLSA, which now includes the nursing mothers break time requirement. See generally Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. 80073, 80078. The enforcement of the FLSA is carried out by WHD investigators stationed around the country. These investigators respond to complaints and gather information from the employer and employee to determine compliance with the law.

The law does not specify any penalty if an employer is found to have violated the break time for nursing mothers requirement. Although the FLSA provides a private right of action to employees to recover unpaid wages, in most instances there will not be any unpaid wages associated with an employer's failure to provide breaks to a nursing mother. If an employer refuses to comply with the law, the Department could seek injunctive relief in federal court.

If a nursing mother has been discharged or discriminated against because she filed a complaint regarding her break time rights, she could file a retaliation complaint with the Department or file a private cause of action seeking remedies such as reinstatement and lost wages.

Next Steps—Challenges and Opportunities

WHD received more than 1,800 comments on the RFI. We have finished our preliminary review of the comments and are considering what further guidance to issue. Our preliminary analysis is that almost all of the comments were affirmatively in favor of the law. Many of the comments came from current or former nursing mothers who described their experiences and needs while pumping at work.

For the most part, the comments submitted appear to echo the Department's own assessment of the factors that are important to enable a nursing mother to effectively take breaks to express milk while at work.

In our initial comment review, it appears that some employer representatives were concerned about the notice requirement, and encouraged the Department to require nursing mothers to give advance notice to their employers if they intend to pump at work so that the employer can make arrangements to accommodate them. Some employers were also concerned about identifying appropriate space for use by nursing mothers.

Our initial comment review also indicated that, as expected, the employers who are most challenged by the break time requirement are those with mobile workers or workers in non-office settings, e.g., restaurants, retail, delivery drivers, kiosks and small vendors.

CONCLUSION

These policies, which are designed to ensure workplace flexibility to balance the demands of work and family life, are critical to achieving the vision of Good Jobs for Everyone. As such, we thank the EEOC for taking the time to address these important issues.