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Breast Pumps in Jail: Kudos to Taos!

In an unprecedented move, a County jail in New Mexico is providing accommodations for a breastfeeding mother to pump her breasts every few hours and have the product picked up by a family member for her four month old daughter. While there have been a few cases in the past of breast pump use allowed for short term detainees, this is the first case to my knowledge of a jail allowing for long term pumping accommodation (it appears mom is serving a possible five year sentence). Check out this video:

I am particularly impressed by the Detention Center Director Joe Sprunk. What he calls a “no brainer” is forbidden at nearly all detention facilities in the U.S. While I see some criticism of the Detention Center for not already having a policy in place, I say Joe Sprunk deserves some thanks. He is planning on putting a breast pump policy in place that will put a burden on the facility and for which he is under no current legal obligation.

Engorged inmates unquestionably have a medical issue, though most facilities do not treat the possibility of mastitis and other infection from engorgement to be an urgent medical issue. In the case where the facility acknowledges an issue, the best the inmate generally can receive is the ability to “pump and dump” until her supply dries up.

I say, let’s sent some lactation love to Taos County Detention Center Director Joe Sprunk. He can be emailed at . Thank you Joe Sprunk!

UPDATE: Best for Babes reports: “The father reports that his wife has been transferred out of county jail and into a womans  correctional facility in Grants, NM where he will begin the process of advocating for his wife all over again.” A transfer to a state facility is consistent with the length of her sentence.

Milk-Sharing: Safe Infant Feeding and Being A Human

Back in the 1990s, I had more breast milk than I could handle. I knew then and know now that many women, due largely to the circumstances of their lives and not their biology, are not able to produce all the milk their children need. And there are breastfeeding people (some cis-female and some not) who have biological reasons why they can’t produce enough breast milk for their children.

Well, that is where people like me can come in.

By the second trimester of my first pregnancy, my perfectly happy “Barely B” cups had become G cups. I didn’t know there were G cups and never had desired to own them. When my first son was born, I pumped in the fruitless hope that he would drink breast milk from a bottle while I was in court. He had other ideas. Then I pumped for comfort because I was constantly engorged. I could pump eight ounces in five minutes, switch bottles, and pump another eight ounces. But my son would have none of it. He wanted breasts or nothing.

Pretty soon I had a freezer stocked full of pumped breast milk my son wouldn’t drink. So, after some research, I contacted HMBANA in the hope of finding a good home for my gallons of milk. But I was also on an SSRI at the time – one then and now considered entirely safe for breastfeeding children. The HMBANA policy, I was told then, was that no milk donations would be accepted if the donor was on any medications whatsoever. So HMBANA would not accept my milk.

When son number two was born, not only did I have over supply but overactive let-down. That meant my first let-down would hit the back of my son’s throat with such force it triggered his gag reflex and he chomped down in an attempt to slow the flow. There are only so many times a baby, affectionately nicknamed “Moose” for his ten pound birth weight and trap-like mandibles, can chomp on your nipples before something must be done. That something was pumping before each feed so that my let-down was not so fast. And that meant more gallons of breast milk in my freezer.

There were no informal milk-sharing networks on the Internet in the nineties. Or if there were, I didn’t know about them. So I was forced to pour gallon after gallon of breast milk down the drain.

Menschheit is a difficult word to translate. Literally it is the German noun meaning “humanity” or “mankind,” but I grew up hearing it used in Yiddish to describe a quality – the quality of acting like a real human being. This, in Yiddish, is considered a good thing. Giving my abundant excess breast milk to a baby who needed it seemed to me to be the most basic menschheit. It is what a person does if she is really human.

It made me incredibly sad that I couldn’t find a home for my breast milk. And it makes me very happy that today people with excess milk can find other people who need milk and make the exchange. This is menschheit; it was what humans do for one another.

Following is a post written by economist and breastfeeding expert James Akre about the safety and necessity of milk-sharing. It was originally published by baby gooroo on June 28th and is reprinted here with the kind permission of Akre and baby gooroo:

    Since pre-history, mothers in need of human milk have relied on other mothers in their family and community with milk to spare and share. According to the World Health Organization (WHO) and UNICEF, the second-best feeding option, after breastfeeding, is breast milk expressed by a child’s own mother, followed by milk from a healthy wet-nurse or from a human-milk bank.

    The Human Milk Banking Association of North America (HMBANA) acknowledges that its not-for-profit member banks—two in Canada and 11 in the U.S. serving a total population approaching 350 million — cannot satisfy even a quarter of the current demand for banked milk. Under the circumstances HMBANA rightly gives priority to sick and premature babies. But at $3–$6 an ounce, a week’s supply could cost as much as $750—something few parents can afford to pay even if banked milk were available.

    “A growing awareness of the importance of breast milk for babies has accelerated the demand for human milk at a time when processed donor milk is scarce and costly,” says Amy Spangler, president of baby gooroo. “Intent on giving their babies what every baby needs most, mothers are bypassing milk banks and going directly to the supplier—other breastfeeding mothers with milk to spare.”

    The Milk-Sharing Debate

    With the help of social media, mothers are increasingly aware that milk-sharing is a viable option for mothers who can’t breastfeed or obtain banked milk. Mothers of healthy babies who need milk are linking with other mothers willing to donate milk via chapters of two popular Facebook-based communities—Eats on Feets and Human Milk 4 Human Babies—operating in more than 50 countries.

    These online communities allow donor mothers to share their milk, safely and ethically, in the belief that they and recipient mothers are capable of weighing the inherent benefits and risks and making informed decisions. This altruistic commerce-free exchange is grounded in the principle that all who are involved in milk sharing take full responsibility for their actions and subsequent outcomes.

    However, the position staked out by some public health authorities, notably in Canada, France, Israel, and the U.S., including the Canadian Paediatric Society and the American Academy of Pediatrics is clear: Don’t do it!

    Some in the health and medical establishment regard internet-based sharing as a threat both to their authority and to public health. They reject a system that operates outside their influence, that can’t be regulated, and where mothers alone exercise control. Some especially anxious observers go so far as to allege that mother-to-mother milk sharing undermines the ability of the few under-provisioned human-milk banks to meet the urgent needs of sick and preterm babies, by further reducing potential milk donations.

    It should be noted that donor mothers have been breastfeeding their own children. With few exceptions, these mothers and their children are being followed closely by health care professionals with all that this implies for health status monitoring; and they are ready to discuss their lifestyle and disclose their medical records before sharing their milk. And yet health authorities are contending that mother-to-mother milk sharing is fundamentally riskier than feeding infant formula, and that it’s impossible for mothers, acting on their own, to minimize health risks.

    Those in favor of milk sharing disagree.

    Weighing and Managing Relative Risk

    Milk banks function according to a strict medical model where regulations, rules, and protocol determine what is done, when, and for whom. Babies receiving banked donor milk are virtually always sick and hospitalized; healthy children seldom qualify for access to the limited amount of banked milk. Health professionals prescribe milk for the sickest, neediest, and most fragile babies, who are frequently immuno-compromised and risk death.

    In addition, the screening criteria that milk banks typically apply disqualify many otherwise healthy women who might be willing to donate their milk. Exclusion criteria include previous residence in the UK (due to possible infection with mad cow disease), regular consumption of caffeinated beverages, a baby older than 6 months of age, and a small amount of available milk.

    In contrast, milk sharing takes place in the community where interpersonal contact plays a significant role. Typically, the personalities and values of those involved are largely responsible for influencing decisions; the children concerned are healthy; and mothers are motivated by a heightened awareness of the importance of human milk for human babies and a desire to contribute to the common good.

    There are risks associated with milk sharing just as there are with feeding babies formula.

    It is thus a question of weighing and managing relative risk, minimizing potential harm, and maximizing benefit. Rather than resisting and dismissing milk sharing, the constructive approach would be for health authorities and health care professionals to engage with mothers in ways that help make the practice as safe as possible, such as providing reliable information on donor screening, milk collection, storage, pasteurization, and feeding practices, and expediting voluntary sharing of medical records.

    There are encouraging signs of a more nuanced attitude among health professionals. For example, based on their survey of more than 400 health professionals, two researchers from the University of Wisconsin School of Medicine and Public Health in 2010 concluded that those knowledgeable about breastfeeding overwhelmingly support wet-nursing and sharing of unpasteurized human milk. The majority of those surveyed recommended that donors should be screened like blood donors, and should be instructed on safe milk handling and storage techniques. Although health professionals view all infants as possible candidates for unpasteurized donor human milk, concerns remain about safety and social problems with wet-nursing and milk sharing. Lastly, survey participants agreed that professional recommendations should be developed to optimize safety and acceptance of wet-nursing and human-milk sharing.

    What the Milk-sharing Community Advises

    The four pillars to support the safe sharing of breast milk from Eats on Feets stress:

      Informed Choice — Mothers are responsible for understanding the options, including the risks and benefits, of all infant and child feeding methods.
      Donor Screening — Mothers can communicate with donors by asking questions about their health and lifestyle, and by requesting blood screening test results.
      Safe Handling — Mothers and donors should handle milk with clean hands and equipment and use proper storage methods.
      Home pasteurization — If in doubt, mothers can pasteurize milk at home: on the stovetop in order to inactivate HIV; or using a single bottle pasteurizer that performs the Holder method of pasteurization.

    Meanwhile, Human Milk 4 Human Babies stresses that, “It is in the spirit of informed choice that milk sharing on these [Internet] pages will occur, and all people posting here will take complete responsibility for the outcome of milk sharing.” It also reminds mothers that:

    Full Disclosure Reduces Risk

    Suggested points of discussion can include medications, alcohol and drug use. In many countries, testing for infectious diseases is done during routine prenatal/antenatal care. You may be able to consult a health care provider to obtain further testing if desired. You can ask for copies of those test results. If you cannot get a complete picture of the health of your donor, one option is to look into at-home pasteurization.

    Mother-to-mother human-milk sharing is here to stay. Though technology has transformed the practice, it remains fundamentally identical to what mothers of good will have been doing since pre-history on behalf of other mothers and their babies.

    Not-for-profit human-milk banks and commerce-free mother-to-mother milk sharing can and should operate on parallel non-competitive tracks. They are complementary, not antagonistic. Indeed, there is significant untapped potential for both systems to play mutually supportive roles in pursuit of a single common objective—helping to ensure that no babies are denied their nutritional birthright.

Many many thanks to Trevor at Milk Junkies for kicking my tush so I would participate in this important blog carnival.

“The Talk” on Breastfeeding and The New Federal Workplace Pumping Law

The latest “sorta famous women sitting in a semi-circle talking about things they know little about” daytime show is called “The Talk.” You probably know lots more about it then I do. It looks like “The View” which I have seen only in clips – the clips that arrive couched in “can you believe [insert semi-famous women I probably have never heard of] said this about breastfeeding!” outrage. Barbara Walters’ comments in 2005 on not wanting to sit next to a woman breastfeeding on a plane is probably the most famous and led to protests outside the network studios. I think Babs learned her lesson. Personally, my favorite part of that whole incident was Jimmy Kimmel’s take on it:

Well, “The Talk” is clearly handling discussion of breastfeeding very differently. Thanks much to the great Karen Gromada for giving me a “heads-up” on this clip.

Stacey Armato Responds To The TSA Post On Her Breast Milk Detention

Stacey Armato, the mom who was detained by the TSA when she requested that her pumped breast milk be given an “alternate” screening, agreed to an interview with me to answer some questions that might be lingering since the TSA posted its statement on her case.

Q. In any earlier interview you said you hadn’t received an apology from the TSA but the TSA claims you accepted an apology from it. Did you receive an apology from the TSA?
A. In March of this year, TSA sent me a statement.  It stated that they were responding to my report that on “numerous occasions [I was] urged to put the breast milk through the x-ray machine and [was] subjected to additional screening.”  They stated that the “screening workforce [had] been briefed regarding this situation.”  The letter also stated that it was their “understanding that…the issue has been resolved” and they “extend [their] sincere apologies to [me] for the discomfort and inconvenience [I] experienced during the screening process.”  The letter concluded by stating that TSA “appreciate[d] that [I] took the time to share [my] concerns with [them].”  Of course, the complaint that I sent over to TSA on 2/2/10 addressed many important issues this letter did not acknowledge at all including being retaliated against, harassed, humiliated, degraded, threatened with arrest, held in security for an hour, among other things.  Frankly, I disregarded this letter from TSA in March as a standard form letter they would issue to any complaint and did not view it as an apology for what happened on 2/1/10. 

Q. The TSA states in its blog response: “The passenger has flown since these events occurred and has provided TSA a written confirmation that she no longer experiences issues.” Is this true?

A. The following week (2/9/10), I was ‘shadowed’ by a TSA authority assigned to me by Phoenix Airport to see what I go through each week.  As soon as I asked for an alternate screening, I was told to put the milk through the x-ray machine.  The TSA authority had to immediately make herself known to the TSA agent and said to give me an alternate screening.  It was clear that any briefing or training that had been done was futile.  In the weeks following that, after speaking with a Phoenix TSA customer service manager, I traveled out of a completely different gate.  I didn’t experience any more harassment or retaliation thereafter.  After a few more weeks, I resumed travel out of my original gate mindful never to encounter the four or five agents I had dealt with on 2/1/10. If there was a choice between two lines, I would pick the one with agents that were not part of the incident. I resumed travel out of my original gate fearful that I would encounter the same agents as on 2/1/10. I literally would start sweating wondering who I would encounter and how I would be treated.

On 4/22/10, after one of the final trips I took with breast milk, I emailed the Phoenix TSA customer service manager.  I wanted to make sure he knew that every week since 2/1/10, I had been instructed to place the milk through x-ray and had to ask again for an alternate screening…every single time.  I brought this to his attention so he knew the agents still had no knowledge or, possibly, no regard for the breast milk screening rules.  The response back to me was they were okay with that so long as, at some point, the agents remembered that my request [for alternate screening] was allowed. 

Q. How do you think the TSA should have responded to your complaint and how did its response fall short?

A. My attorneys have advised this I do not address specifically how the TSA should have responded. It may jeopardize my current tort claim against them, especially if they try to limit my relief to what I put in this response. After we exhaust all administrative remedies, we will file a lawsuit in federal court that addresses exactly what should have been done by the TSA.

What do you think about how the TSA has responded to Stacey Armato? Is the TSA “apology” and a “refresher” to TSA staff enough?

The TSA Responds To Breast Milk Mom, Stacey Armato

[UPDATE: After the original publication of this blog post, the following went up on The TSA Blog: “Updated on 12/9/2010 at 8:25 P.M. to add that proper procedures were followed.” Oh, really? ]

Over at The TSA Blog, they have posted TSA Response to “TSA Breast Milk Screening” Video. It is quite short but has already acquired a large number of comments, the vast majority of which find the response inadequate.

Here are some interesting bits:

We extend our sincere apologies to any passenger who may have experienced discomfort and inconvenience during the screening process.

So is this directed at Stacey Armato whose video is being discussed or just airline passengers generally? And if they are talking about Armato, are they saying she may have experienced discomfort and inconvenience? Are we really in doubt on this point?

Well, actually maybe not. The TSA Blog’s “Blogger Bob” also writes:

We acknowledge this particular passenger experienced an out of the ordinary delay, and have worked with our officers to ensure we proceed with expediency in screening situations similar to this.

So the TSA acknowledges something happened that should not have happened. And what do they tell us about what happened to the agents involved?

After the investigation, the officers received refresher training for the visual inspection of breast milk (an infrequently requested procedure).

Really?? How about a refresher course on retaliation and false imprisonment?

There is something Blogger Bob writes that may raises some questions for those of you who have read my previous posts about Stacey Armato’s visit to the TSA plastic detention booth in Arizona here and here. And that is:

TSA investigated the matter and sent a letter of apology to the passenger in March of this year. The passenger has flown since these events occurred and has provided TSA a written confirmation that she no longer experiences issues.

Armato has said she did not receive an apology, that she continued to see the same crew at the same gate as she made her weekly flight back from Phoenix to L.A., and she is in the process of filing a lawsuit against the TSA for the damages she suffered on February 1st when she was detained. So what does she have to say about the TSA response to her video? Hang in there. Armato’s response will be posted here shortly.

Please feel free to leave a comment at The TSA Blog with your feelings about the TSA response to the video in which Armato is detained for asking her pumped breast milk go through “alternate” screening.

And leave a comment here with your thoughts. How do you feel about the TSA response posted on its blog?
Was a “refresher” enough? Should there have been a more severe sanction for the TSA staff? How do you feel about how the TSA is responding to the complaints of flyers?

Take note also that in The TSA Blog post about Armato, there is a link which we are encouraged to use to share our experiences with the TSA. I filed a formal complaint with the TSA on November 22nd after my teenage sons were separated from me without warning while going through a TSA security checkpoint at Logan Airport in Boston. Other than an acknowledgment that my complaint was received, I have received nothing from the TSA in response to my complaint.

So why is the TSA encouraging people to communicate with it if it does not respond meaningfully to complaints?

[UPDATE: Within seconds of publishing this post, I received an email from TSA customer service in Boston restating my complaint and apologizing for any “discomfort.” I have replied asking again some more specific questions concerning TSA policy on screening families traveling together. Another post coming on that point.]

Breast Milk Mom Prepares to Sue the TSA Over Detention

Stacey Armato, the mother who was detained by TSA agents in Phoenix last February when she asked for “alternate” screening for her pumped breast milk, has filed a TSA Tort Claim Package, the last step before she can file a lawsuit against the government employees who she claims detained her in retaliation for filing a complaint against them. Under the Federal Tort Claims Act, in order to sue the United States government or its employees for certain claims one must exhaust all remedies available to you by the relevant government agency. Armato, who is due to give birth to her second child on December 25th, plans to file a lawsuit against the TSA and the individual agents as soon as it is legally possible.

According to Armato’s complaint filed with the TSA concerning what happened when she presented her pumped breast milk for screening at the Phoenix airport on February 1st:

All the same TSA parties were present from the week before surrounded [stet] me . I was demanding an explanation and wanted to speak with the manager but was refused. I was told to be quiet and do as I was told or I wasn’t going anywhere. I felt like a caged animal, stared at by multiple TSA agents and other travelers. After 15 or 20 minutes, my anger turned to tears. I couldn’t stop crying. I felt harassed, degraded, violated, falsely imprisoned, and retaliated against.

Finally, three Phoenix police department officers came. One … came in to tell me that I needed to calm down or TSA could have me arrested. He instructed me to go through alternate gates for security on my following trips because they seemed to have it out for me. He said these TSA agents saw me coming, remembered me from the week before, and wanted me to play along with their ‘horse and pony’ show or they would have me arrested.

Armato alleges as well:

The incident on February 1, 2010, was an obvious retaliation against me for lodging a complaint with the TSA the previous week. It is absolutely unforgiveable that these TSA agents would hold me like a caged animal in an apparent act to “teach me a lesson.” The TSA agents knowingly, and willfully, disregarded their own rules and regulations. I was placed in a glass enclosure, in full view of all the other passengers. I was continuously yelled at, talked down to, and threatened with arrest if I did not adhere to the TSA agents’ demands. The TSA agents, as well as the TSA itself as employers of these individuals, is liable for intentional infliction of emotional distress, negligent infliction of emotional distress, battery, assault, trespass to chattel, false imprisonment, and civil harassment, among other causes of action

While news agencies have reported receiving a statement from the TSA claiming that Armato accepted its apology concerning the incident, Armato maintains she has received no apology.

Amato’s story and the TSA video of her detention has gotten a great deal of press. Has the TSA’s treatment of Armato changed your plans for travel? How do you think you might behave if you were in Armato’s position?

Sustainable Mothering will continue to present the latest on this case, as well as other incidents involving the TSA that impact parents. Stay tuned.

Just When You Thought it Was Safe to Travel with Breast Milk: The TSA Targets Mothers

When attorney Stacey Armato arrived at the TSA inspection at her usual gate at Phoenix International Airport for her weekly return flight home to Los Angeles on February 1st, she felt a bit of trepidation. The week before she had been held for 40 minutes while TSA staff researched whether she had a right to refuse to allow her pumped breast milk to be x-rayed. She had requested “alternate” screening – something to which she has been entitled since the summer of 2007 when the TSA exempted breast milk from the 3-1-1 rule and reclassified it as a medical liquid. Under current TSA policy, breast milk may be carried on-board in any reasonable quantity, as long as it fits in carry-on luggage, and it can be screened either through the x-ray machine or by hand (the “alternate” screening for medication which may consist of a visual inspection or a wipe of the container’s exterior that supposedly detects explosives). While the TSA website is far from user-friendly on this point, the “alternate” screening in place for medications is available to those traveling with breast milk because breast milk was reclassified as a “medical necessity.”(scroll down to the Q&A).

After her negative experience the previous week, Armato had filed a complaint with the TSA. Now she was about to be screened by the same staff about whom she complained. But she could have no way of knowing what they had in store for her.

When Armato asked once again to have her breast milk (which she was bringing home to her 7 month old son) screened without an x-ray, she was held in custody by TSA for an hour. She was given no explanation. She never knew how long she would be held. As her flight left without her, she stood trapped in a plastic box weeping while her pumped milk – now out of its cooler – was played with by TSA staffed. Seriously, watch the TSA staffer in the foreground of the video below. She picks up, puts down and tosses about the containers of milk as if they are toys.

Below is a YouTube video made by Armato’s brother-in-law. The footage presented in this video was obtained by Armato through a Freedom of Information Act request and is the official recording made by the TSA. However, approximately 20 minutes of video – what happened after what you can see here – was destroyed by TSA as not relevant to her complaint.

If you would like to see all of the video Armato obtained without being sped up as it is below and without the graphic commentary, you can see it here, here, here, and here.

So let’s take a break right here and give Armato a hand. This mother returned to full-time work outside the home 13 weeks after her first son was born. Her son was fed exclusively with breast milk despite her work requiring she travel from Los Angeles to Phoenix once every week. She flew early morning and return in the afternoon, pumping approximately 12 ounces of breast milk during the day. It was this milk she was trying to bring home to her son.

Since this YouTube video went viral last week, many have asked whether she filed a complaint with the TSA about her treatment. The answer is “yes,” however to her knowledge nothing was done to discipline the TSA staff involved in this incident. Armato has taken this same flight many times since February and she has seen all of the TSA staff members at work. Armato has yet to find an attorney willing to represent her in a lawsuit against the TSA.

So what happened in the twenty odd minutes after this video ends? Armato was forced by TSA staff to divide her breast milk into more containers. Yeah, that’s right. Armato had 12 ounces of breast milk in four 3 ounce containers despite the fact TSA policy does not require breast milk be carried in 3 ounce containers. After being held in custody for an hour and a half, TSA staff forced her to sit on the floor and pour her breast milk into new containers so that each container held no more than 2 ounces.

Does any TSA policy or regulation require that breast milk be carried in 2 ounces batches? No. There is no explanation for what happened to Stacey Armato other than that she was targeted for harassment by vengeful TSA staffers against whom she had filed a complaint the previous week. And those staffers still work for the TSA. They not only got away with holding Armato hostage, they are free to do the same to you.

What are your thoughts about what happened to Stacey Armato? Have you been harassed while trying to carry breast milk through a TSA checkpoint? During this holiday weekend in the U.S., how are you treated by the TSA as you traveled with your children?

U.S. Department of Labor Issues Fact Sheet on New Workplace Pumping Law

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.

Curb Your Enthusiasm About the New Federal Workplace Pumping Law

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.

Haiti, Hell, Good Intentions, and Breast Milk Donations

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.

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