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After much speculation on the impact of a new federal law requiring certain employers to give unpaid pump breaks to certain employees (and my advice to Curb Your Enthusiasm), the U.S. Department of Labor has issued a Fact Sheet.
Fact Sheet #73: Break Time for Nursing Mothers under the FLSA restates the requirements of the amendment to the Fair Labor Standards Act which went into effect this past March and which requires unpaid breaks for certain employees to pump breast milk and private space in which to pump.
While the text of the Fact Sheet provides little clarification of the new law – the penalty to employers for violating the law is still unclear – and is not an official position statement or regulation, it may indicate the Department of Labor is better prepared to accept complaints than it was in March.
Employees seeking more information should "call [the DOL] toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243)." While there have been no public reports of employees using this new law, I have also seen no reports of the DOL rejecting complaints. Any nursing mother having trouble with employer compliance with the federal workplace pumping law should feel free to write about it here.
The workplace pumping provision of the federal health care bill sounds like great news for women who pump breast milk in the workplace. Who could complain about a federal requirement that all employers give reasonable unpaid breaks to employees who need to pump for their nursing infants? On closer examination of what the law actually does, I think many of you will complain.
On its face, the new law, Section 207 (r) of the Fair Labor Standards Act (FLSA), requires unpaid break time for employees to pump breast milk for a child under age one. In a country that truly supports breastfeeding mothers and their children, women should be paid for pumps breaks. Children should breastfeed until at least a year so mothers can pump for as long as their children need them to. The new federal law has a hardship exception for employers of fewer than 50 employees. It is still unclear how many employers will evade the new requirements under an as yet undefined hardship exception.
But the problem with the new federal workplace pumping law is much bigger than all that. The problem is that there may be no way for most women to use it at all.
Go back to the FLSA. To be covered by new Section 207 (r) you have to be an employee to whom the FLSA applies in the first place.
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. Section 13(a)(1) and Section 13(a)(17) also exempt certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week.
Basically that means that if you get a salary, you are probably not covered by the FLSA and not entitled to whatever new federal workplace pumping benefits there are. Well then, the exempt workers should at least be happy for the nonexempt – the hourly workers, those women covered by Section 207 (r), right? Well, hang on.
The first thing I researched about the new federal workplace pumping law was whether there was a penalty for employers that don't comply. Finding the answer is much harder than it would appear. Go back and read the text of the bill. No, you didn't miss it. There is nothing about enforcement, penalties or remedies.
But you can't stop there because new subsection (r) is an amendment to Section 207 of the Fair Labor Standards Act of 1938. (I know this is confusing but ride along with me.) So you need to go to the FLSA and read Section 207. See if Section 207 has some enforcement, penalties or remedies. Hmm. Nope. So then you read the entire FLSA. (Actually, you don't need to unless you want to. I reread it for the first time since law school.)
There are lawyers who do exclusively FLSA work but, fair warning, I am not one of them. You can find the penalties though. Section 216, which is long and convoluted. From what I can tell, penalties are available if the employer's violation resulted in lost wages or unpaid overtime pay. But Section 207 (r) specifies that pump breaks are to be unpaid. So it appears that an employee would have to get fired to have lost wages. And women don't want to get fired over needing to use a breast pump at work.
In the real world, if an employee can't get pump breaks or a pump space, she needs an order, either from a court or a government agency, requiring the employer obey the law. What she needs is an injunction. But for injunctive relief under the FLSA, you need to look at Section 217. Did you read it? No mention of it applying to Section 207.
So what will happen to an employer who refuses to comply with the new federal workplace pumping mandate? So far, I haven't been able to find a labor lawyer who can tell me. And that makes me wonder whether the answer is "nothing at all."
The Department of Labor, Wage and Hour Division, has the ability to issue "Administrator Interpretations" which clarify what the FLSA means. However it is unknown when any will be issued concerning employer obligations under Section 207 (r). Unless there are complaints filed, Wage and Hour will have no reason to issue any "Interpretations."
Now, some employers are going to provide break time and pump space to all employees who need them. Some employers already do. As I wrote in Pumping 9-5 in Mothering back in 2008, 26% of all U.S. employers provided some sort of lactation support in 2007. But the study from which that figure comes does not specify how much lactation support. It is unlikely that a quarter of all U.S. employers give both unpaid break time and a place to pump that meets the requirements of the new FLSA Section 207 (r): "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public."
Let's also remember that only thirteen states, plus Puerto Pico and the District of Columbia, have laws that require some employers to give unpaid breaks and a place to pump to their employees. Of those thirteen, only five states (California, Colorado, Hawaii, Oregon, and Vermont), as well as Puerto Rico and the District of Columbia, have laws that penalize employers for failing to abide by workplace pumping laws.
Let's take a look at what large corporate law firms appear to be telling their large corporate clients. Some corporate law firms appear to be advising large companies to comply at least minimally. A few point out that this amendment may contradict existing FLSA regulations which require that employers pay employees for breaks up to 20 minutes.
So what should you do if you are an hourly worker whose employer is not complying with FLSA Section 207 (r)? Contact the U.S. Department of Labor, Wage and Hour Division at 1-866-487-9243. Look around the Wage and Hour website. Have a confidential conversation at the toll free number. And then, if you would like to share your story with others, e-mail me. I am currently collecting information from workers whose employers refuse to comply with FLSA Section 207 (r). Until we know whether this new federal law can actually help women pump in the workplace, I will be writing the stories of women whose employers fail to comply with it.
A few days after the earthquake in Haiti, my Facebook account was flooded with suggestions to become a "Fan" of an organization I do not trust. I wondered why people who should know which organizations are actually helping breastfeeding women and their children would think I would want to support this particular organization. And fairly soon I knew: this organization had a heart string pulling photo of Haiti on its home page and a claim it was helping get donated breast milk to Haiti. My response? Not a chance.
I was dubious not only because of my distrust of this particular organization but because of the practical realities of transporting and distributing human milk in a country with no electricity, no refrigeration, and no hope of widespread access to either any time soon. I also knew that the first priority in feeding babies in an emergency is to feed from the breast. And I knew that the U.S. has a long and shameful history of harming the people of Haiti.
If you live in the United States, chances are good you know little about Haiti. I am no expert but I have some book recommendations. Look in the left hand sidebar for links (and please click through them to buy books at Powells and support this blog). The Rainy Season: Haiti Since Duvalier by Amy Wilentz is the first book I read about Haiti. I read it the year it was published, 1989, when I was 26 and a year out of law school. It is a beautiful, horrifying, well-researched book about the history of the country grown out of the first successful slave revolution in the western hemisphere. By the time Brother, I'm Dying was published I knew a good bit more about Haiti, in part having read all the previous works of that book's author Edwidge Danticat. Brother, I'm Dying is the true story of the death of Danticat's beloved uncle in the custody of the U.S. Department of Homeland Security (DHS). If you are wondering why there would be any issue about accepting refugees from Haiti, you need to read Brother, I'm Dying, not only because you need to learn more about how the U.S. treats Haitians regardless of whether there has been an earthquake but all of us in the U.S. need to know the nightmare a U.S. citizen of Haitian descent can go through trying to find the truth about the unnecessary death of a loved one who simply disappears into DHS custody while legally entering the U.S.
What you probably do know about Haiti is that on January 12th it was devastated by an earthquake killing hundreds of thousands of people and nearly two weeks later the death toll is still rising. You may also, particularly if you are an advocate of breastfeeding, think that getting breast milk to babies orphaned by the quake is urgent. Well, yes and no. All international aid organizations know that bringing artificial baby milk (also known as "formula") to an area without clean water is sure to lead to more dead babies. Mixing powdered formula with contaminated water is an obvious danger. So what is the problem with liquid formula? The nipple (teats) and bottles needed to feed babies other than from the breast must be sterilized – impossible without clean water, electricity, refrigeration, and fuel. Well then, donated breast milk becomes all the more important, right? No. Haiti has no milk banks and even if it had them, without uninterrupted electricity and refrigeration – something it will not have for the foreseeable future – there will be no milk banks. Donor milk is also not sustainable. An unknown number of Haitian babies have been orphaned by the earthquake, however they must be fed by Haitian women who can continue to feed them.
Prior to the earthquake Haiti was already the poorest country in the hemisphere. Its infant mortality rate was the highest in the western hemisphere (nearly 60 out of every 1,000 babies died before the age of one compared to 6 out of every 1,000 in the U.S.) Maternal mortality was also the highest in the hemisphere (670 women out of every 100,000 died of pregnancy-related causes as opposed to 11 out of every 100,000 in the U.S.) However, breastfeeding rates in Haiti were far better than the U.S. According to UNICEF, 41% of babies under the age of six months are exclusively breastfed in Haiti compared to 13.6% in the U.S. When considering the availability of breast milk in Haiti, there are some other critical statistics. The rate of non-exclusive breastfeeding of children between 6 and 9 months is 87% and the percentage of children still breastfeeding at 20-23 months is 35%. What these numbers mean is the one thing that Haiti has a lot of is lactating women.
Still a number of breastfeeding advocacy organizations in the U.S. – the Human Milk Banking Association of North America (HMBANA), United States Breastfeeding Committee (USBC), International Lactation Consultant Association/United States Lactation Consultant Association (ILCA/USLCA), and La Leche League International (LLLI) – issued an "Urgent Call for Human Milk Donations for Haiti Infants" on January 25th. The U.S. Navy Ship Comfort, a medical vessel currently anchored off the coast of Haiti, had been shipped frozen donated breast milk and the "Urgent Call" urged lactating women in the U.S. to donate more breast milk to HMBANA milk banks, some of which would go to Haiti. Reading this "Urgent Call," something didn't feel right to me. The donor milk was going to the ship NICU and can not be sent to any facility on land as there is no facility that can maintain and distribute it. So I did some research on the Comfort. It took seconds to discover that the Comfort NICU has two incubators. Yes, two. Any baby born prematurely on the ship will have to be able to breastfeed exclusively before leaving the ship because breast milk from the breast is the only way Haitian babies can survive conditions there.
In short order, it was discovered that there had been no request for donor milk and aid organizations were asking that the milk shipments stop. The Emergency Nutrition Network explains why: the first priority has to be relactating women not currently nursing and making sure Haitian babies are feeding at the breast. That "stressed or malnourished women cannot breastfeed" is listed as one of the "myths that put babies at risk."
One organization that is helping women in Haiti breastfeed is Circle of Health International (COHI). This non-profit – the one that has been getting my donations – has sent midwives, lactation professionals, and birthing supplies to Haiti for the estimated 37,000 women currently pregnant as well as the women and children who survived the quake.
So why did these U.S. breastfeeding organizations send out this "Urgent Call"? Perhaps it was ignorance. Perhaps it was well-intentioned. Perhaps it really did not occur to them that any feeding of babies in Haiti other than from the breast could decrease the total amount of breast milk available in Haiti because it discourages Haitian women from building their own milk supplies by breastfeeding babies (their own or orphaned ones) or relactating. And perhaps some non-profits see exploitation of the Haitian crisis as an acceptable way to raise funds that will be used elsewhere. There may be explanations but there is no excuse. Haitian women and children need our help urgently and we can help by sending money to aid organizations like COHI.
Watching the television show Weeds last night, I admit my interest in whether Nancy was breastfeeding her new baby bordered on obsessive. In the last episode, I caught what looked like Nancy applying lanolin to her nipples. But still, two episodes into a new baby on the show and she still hadn't made any direct mention of how this child was being fed. It bugged me.
But from early on in last night's episode, there were references to breast milk – mostly references to pumping and where the bottles of breast milk could be found, but I was satisfied. Honestly, at this point I could case less whether Andy is a good father or if she marries Esteban. I managed to get through the circumcision scene in the previous episode only because the rabbi's response to the question, "How do you practice to do this [circumcision]?" was "on goyim." Sorry. I'm Jewish. It was funny. If you are offended by the term "goyim," my apologies. Footnote here: I didn't circumcise my sons and think the practice is barbaric so I was working pretty hard at finding humor in the scene.
Back to last night's episode: Suck 'N Spit. I should have seen it coming in the title. Nancy is out to dinner with Andy (her brother-in-law for those of you who don't know the show) and becomes painfully engorged. You can literally see it. Watching her discomfort, her squirming and gently pressing her breasts – well, if you've been there, you know. She gives up on waiting till she gets back home and heads for the ladies room where she pulls what looks like a battery operated breast pump from her purse, leans over the sink, and starts to pump. But the pump kicks out – seems the batteries die. At this point I am on the edge of my seat. I know she has to empty those breasts.
It probably seems marginally disturbed to be so drawn in by a plot line about engorged breasts. I just don't see my life on television very often. Having spent nearly nine years lactating, the fill-full-empty-fill-full-empty arc of breast milk production is so familiar that I can read it in the way a woman moves, sits, breathes. Being aware of how much milk I had, how near full I was, how soon I needed to empty, was part of my every day for a significant chunk of my adult life.
When Nancy leans over the bathroom sink having tossed her dead breast pump, I thought she was going to hand express. She obviously wasn't walking out of that ladies room without relieving the pressure. Then she hollers for Andy and I squealed so loud my kids jumped. I immediately knew what she was going to do.
I never asked my kids' father to suck breast milk from my breasts – something of which I reminded him as we watched Nancy beg Andy to "suck 'n spit." But I totally would have. And he damn well better have done it.
This morning I searched the Internet for a clip of the scene to post here. Until one goes up, you are just going to have to trust me that Andy relieving Nancy's engorged breasts was not at all sexual. People with experience breastfeeding are probably going to wonder, perhaps aloud, why she didn't just hand express. As someone who could never get a drop out that way, I get the need for suction. And Andy's character on Weeds kind of annoys me much of the time so I loved that he pretty much just got to business doing what needed to be done.
But I suspect there is going to be a fair bit of Internet chatter about that scene. There are people who are going to write about it being disgusting or sexual or inapprorpiate. That he swallowed the breast milk instead of spitting it out will be an issue. And my response? Grow up! This was real. This was human. This was as it should be. Women who have babies lactate. Their breasts fill with milk. If the milk is not removed, their breasts will become engorged (too full) and the pressure will need to be relieved by removing some milk. If there is no hungry baby around to do it, the milk will need to be removed some other way. There it is. Thank you Weeds for putting it on television.
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