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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.
When it does not create or protect the right of a woman to breastfeed. When is breastfeeding rights legislation a really really bad thing? When it makes it even more difficult for a woman to breastfeed than if there were no law at all. And this really really bad thing is what is happening in North Dakota.
Witness the sad journey of North Dakota Senate Bill 2344. As originally introduced this past January, SB 2344 amended the North Dakota crimes code to exclude breastfeeding from all forms of indecent conduct, and created a new section of the state civil rights law making discrimination on the basis of breastfeeding prohibited both in public accommodations and in the workplace. North Dakota would go from being one of a handful of states with no law protecting breastfeeding to having one of the strongest laws. But then the bill made a trip into the North Dakota Senate Human Services Committee where on February 16th SB 2344 was completely gutted. The Committee removed the entire section of the bill which would have created a civil right – therefore removing the only mechanism for enforcing any protection the bill would have created. The Committee also removed the section creating a right to pump breast milk in the workplace.
But the Committee did not just remove vital portions of SB 2344, it added a few words too: "discreetly" and "if the woman acts in a discreet and modest manner." So instead of a new section in the civil rights code, the bill adds this to the health code (therefore without any penalty for violation):
Right to breastfeed. If the woman acts in a discreet and modest manner, a woman may breastfeed her child in any location, public or private, where the woman and child are otherwise authorized to be.
So who decides what is a discreet and modest manner? You? Me? The owner of the public accommodation? The police? The mother? The bill does not say. So who will it be? Whoever doesn't want a woman to breastfeed in public. After all, if a woman is breastfeeding in a restaurant and the owner orders her to stop or leave, the final arbiter of whether the mother is arrested for trespass is the police. Will the police officer watch the woman breastfeed to determine whether she is breastfeeding in a discreet and modest manner? Will he rely on the owner for that determination? Will witnesses be interviewed?
And what does "discreet and modest manner" mean? Visible skin? Visible areola a/k/a the Facebook test? A flash of nipple (I think I'll call this the "Janet Jackson test")? Anyone who has breastfed a child knows that a woman's control over these factors in any given nursing session with any particular child is pretty limited. Any person with breasts can probably understand that a large (pun intended) determining factor in one's ability to control the occasional flash is breast size.
The amended SB 2344 isn't just vague, ambiguous, and totally lacking in protections. Unlike any breastfeeding law to date, North Dakota's SB 2344 arguably makes some public breastfeeding a crime. How? With that tricky word "discreetly." Rather than excluding breastfeeding from the crime of "indecent exposure" as so many other states do, SB 2344 amends the criminal law as follows:
The act of a woman discreetly breastfeeding her child is not a violation of this section.
So does that mean that a woman breastfeeding "indiscreetly" is in violation of the indecent exposure statute? To my knowledge, no woman in North Dakota (or anywhere else – and I have been following this for years) has ever been charged with indecent exposure for breastfeeding. Under North Dakota's existing indecent exposure law, the prohibited conduct is:
A person, with intent to arouse, appeal to, or gratify that person's lust, passions, or sexual desires, is guilty of a class A misdemeanor if that person:
a. Masturbates in a public place or in the presence of a minor; or
b. Exposes one's penis, vulva, or anus in a public place or to a minor in a public or private place.
Not conduct easily confused with breastfeeding. So excluding "discreetly" breastfeeding must mean that indiscreetly breastfeeding, whatever that might mean, is indecent exposure, right?
I have heard the argument that something is better than nothing. Hey, North Dakota has no law concerning breastfeeding so this is better than nothing, right? Wrong. This law offers breastfeeding women nothing – no protection against harassment and discrimination when in public, no rights or protections in the workplace – and it explicitly limits the way in which breastfeeding in public is to be done, possibly even to the point of creating a crime. This particular "something" is most definitely worse than nothing.
Most mothers either want or need to both mother their children and work for a wage. It always surprises me that some find that a controversial statement. It is pretty hard (though some try) to dispute the economic necessity of waged labor for mothers in the U.S. (where I live) today. I won't go down the "but what if she doesn't need the money" road – that way lies mommy wars.
In order to mother and earn a wage, mothers must have their children with or near them most of the time. There, I said it. No, I don't mean that women who can't have their children with them are not mothers or that they are bad mothers. I do mean that while they are away from their children, someone else is doing the mothering acts. And most mothers have very little choice in the matter.
I was pleased to see an article in The New York Times about workplaces in which mothers may bring their children every day. It makes me very happy to see workplaces in which children are welcome. I am excited by the work of Carla Moquin and the Parenting in the Workplace Institute. I am thrilled that The New York Times, which so often gives arms to the mommy wars, published an article in which children in the workplace is portrayed as positive and viable. What bothers me is the title of the article: Maternity-Leave Alternative: Bring the Baby to Work. What the title and some of the content suggests is that bringing children to work eliminates the need for maternity leave.
I owned my own solo law practice when I gave birth to my first son. Whatever maternity leave I was getting, I was creating for myself. I don't consider the federal Family and Medical Leave Act a vast improvement over my situation, though if I had had FMLA time (twelve unpaid weeks), covering my court dates would have been someone elses problem. I hired a friend to cover my court appearances for thirty days from my due date, got the phone number of a nanny agency recommended by the local bar association, and set up a portable crib in my office. My plan was to go back to the office thirty days after giving birth bringing my son who would sleep peacefully in the portable crib and I would hire someone per diem to come to the office when I had to go to court. No problem. I had everything under control and had saved up so I could go without income for a month. I filed my last brief three days before I went into labor. During early labor, I took a conference call.
And then life happened.
Four days into my "maternity leave," I was still recovering from thirty hours of back labor, a cesarean section, aspiration pneumonia, and a post-operative infection. My healthy son was in the NICU on antibiotics "just in case." (No, I still don't understand why.) I would have difficulty walking for months because, unbeknownst to me at the time, my broad ligament had been cut during the surgery. I was lucky – my son's father had three weeks of paid vacation time he could spend at home with us (when we finally made it home). Even though my son had been given some formula in the NICU, I started pumping in the hospital and when we could finally be together he latched on without a problem. And he stayed latched on. When his dad tried giving him pumped breastmilk in preparation for my return to court, he would have none of it. Though he had taken a bottle in the NICU, he never would again. I arranged my schedule so I was never away from him longer than three hours. When I took him to my office, every time I lay him in the portable crib, he screamed non-stop. Soon he started to scream whenever I walked into my office. So I started working from home. I signed on with the nanny service which guaranteed that the nanny would show up at the appointed times (initially a few days a week) or the owner would come in her place. And then the nanny was late. And then she was just "FTA." FTA is a court clerk designation for a party who doesn't show up for trial – "failure to appear" which could get you a bench warrant for someone's arrest. No such remedy with a nanny. When my nanny was FTA, I tried reaching the owner of the agency for that guarantee that she would personally come. She didn't answer her pages. I was screwed.
Slowly but surely I cut my practice down to part-time from home. My mother-in-law stepped in as emergency childcare. Yes, I needed a workplace to which I could bring my son but first I needed maternity leave. I needed time for my body to heal. Even if I had had the birth I wanted, I still would have needed peaceful quiet time to be with my new child. He and I needed to nurse and sleep and rest and play and not worry about clients or judges or conference calls or bills. We needed to be mother and son and nothing else. Not necessarily forever. But for a while.
Should every mother have a workplace to which she can bring her child so that they can have access to each other throughout the day, breastfeed, snuggle, play? Absolutely. Children will be happier and healthier and mothers will be more productive. Older kids can spend some days at work with the other parent as well. But first mothers need paid maternity leave. I am not saying maternity leave is more important than children in the workplace – I am saying it is different. Bringing a baby to work is better than forcing a mother to leave an infant for long work days but it should not be used as an excuse to deny women paid maternity leave. A mother's wage-earning work life is likely to be long. There are a lot of years left to bring kids to the office.
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