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.
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?
[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.]
While this Daily Mail piece is quick to point out the baby might have have disturbed the other parliament members had she awoken, it describes (and shows in photos) that cradled in a sling, with mom leaning over now and then to kiss her head, 2 1/2 month old Victoria slept peacefully. To which us veteran babywearers say, "Like, duh!"
So can you bring your baby to work with you? Would you like to?
Share your stories. And if you would like some help creating a child-friendly workplace, head over to the Parenting in the Workplace Institute which has all the resources you might need.
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.
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."
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 reallyreally 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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