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“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.]

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?

Sling Baby in the European Union Parliament

Have a look at this piece in Britain's Daily Mail about Italian EU Parliament member Licia Ronzulli casting a vote with her infant daughter in a sling.  Apparently EU Parliament rules allow parents to bring their babies to work.

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.

Should You Perfume Your Vagina to Get Ahead at Work? Let Summer’s Eve Know What You Think.

There is a very good post over at Owning Pink – it had me at the title: Want a Raise? Wash Your Vagina. The post is about a full page ad in Women's Day magazine for Summer's Eve Feminine Cleansing Cloths. In that ad (a scan of which is on the blog post), there are 8 tips for asking your boss for a raise, the first of which is to use these cleansing cloths. Yes, the ad suggests you are more likely to get a raise if you "wash" your vagina.

Lissa Rankin of Owning Pink is pissed off and I agree with her. Be prepared, in her post she uses the word "pussy" a lot. With (great) respect to Eve Ensler, I don't use the word "pussy" to describe my vagina. I am not particularly offended by it. I just don't see the need to nickname or euphemise my body parts. I don't have a problem with using or hearing the word vagina and, used to accurately indicate a vagina, it seems entirely sufficient.

But back to the ad. Anyone here ever been sexually harassed at work? I have. A lot. Even after clawing my way through law school and getting hired at a major corporate law firm, I still faced a superior who ogled me, left me inappropriate notes and touched my body at every opportunity. Did he actually smell my vagina before giving me a raise? No. But he certainly made it clear that he wanted to. And the fact that I didn't let him smell my vagina didn't alter how my co-workers treated me since when a superior makes it clear he finds you sexually attractive, co-workers tend to assume you are giving in to his advances. So add social ostracism to fear, despair, humiliation and self-loathing. It was a sad, painful experience and one I don't wish on anyone.

There is a good deal to find offensive in the Summer' Eve ad. Rankin's Owning Pink post does a great job of addressing the whole notion that we need to change the way our vaginas smell. To suggest we do so is sexist AND unhealthy.

But this ad strikes a different nerve of mine. At 25, I graduated from law school at the top of my class, a law review editor, thrilled to be leaving a not-so-nice childhood behind. And I had barely passed the bar before I discovered the world up there with the rich folk wasn't much different from the world I came from. I grew up sleeping with one eye open, waiting to see if some stranger would reach under my sheets in the night. I was often homeless and hungry. My law degree, I was to discover, didn't change things all that much. I had a place to live and food to eat but I still had to endure sexual harassment. It was still all about my vagina. And Summer's Eve thinks it still should be.

Among the comments to Rankin's post is one by a person who says she is the Brand Manager for Summer' Eve. Her name is Angela Bryant and she says: "I want to know what you would like to hear and see from Summer’s Eve, so send me an email at summerseve_cares@cbfleet.com." So let her know what you think.

And let me know what you think. Tell me your sexual harassment stories. Do you think things have changed much since the 1980s when I was told nothing could be done and a lawsuit would destroy my career? Can you be valued for your work and not your sex?

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.

A Podcast with Me from the 2007 La Leche League International Conference – Still Timely, I Promise

Back in July of 2007, I gave a session on Breastfeeding and the Law at the La Leche League International Conference in Chicago. Good session, if I do say so myself, which you can buy on CD here. [Disclaimer: I don't make a cent if you buy it.] While at the Conference, I also did a podcast which has just become available for free here.

So why listen to me talking about the state of breastfeeding law over two years ago? Well, sadly, while there have been some new breastfeeding laws passed – both good and bad – breastfeeding law, and the public attitude toward breastfeeding rights in general, really haven't changed much.

Word of warning, the podcast is almost fifty minutes long so grab some knitting or a hungry baby or something else to do while you listen. I think there some amusing things to learn about my parenting life (how many times do I use the word "clueless" to describe myself as a new parent?) and the role La Leche League has played in it (and how I took my job as Group librarian entirely too seriously). Also I talk about the history of breastfeeding law, current laws and attitudes, and my experience working with the Ronald McDonald House moms. The Ronald McDonald House incident had happened recently and, if anyone is unclear about this, neither Ronald McDonald House of Houston nor Ronald McDonald House Charities has ever dealt appropriately with the moms. So you are going to hear a good bit of justified Jake outrage.

Hope you enjoy it and would love to hear impressions. If nothing else, you have to love a podcast that ends because the interviewer's baby needs a diaper change. ;)

Oh Where Oh Where is the Breastfeeding Promotion Act?

The presidential inauguration is only a few days away.  All of us have our list of priorities for the new administration.  Given the state of the economy and our war in Iraq (and on and on), I don't hold out much hope that breastfeeding will get much Congressional attention early on.  Last year (and much of the year before) political attention was focused on the elections.  So again, I was not all that surprised when the Breastfeeding Promotion Act received so little Congressional attention.  But … well … when will it?

The Breastfeeding Promotion Act is a simple piece of federal legislation that should be pretty uncontroversial.  It amends the section of the Civil Rights Act of 1964 on employment to include lactation.  You know that law passed a year after I was born which prohibited discrimination on the basis of sex (and race and a few other ways one can not be a white man)?  Well, I am forty-five years old and U.S. federal courts still haven't figured out what sex discrimination is.  So if you want to fire someone (or reduce her hours or pay her less or moo as she walks by or refuse to hire her in the first place) because she is breastfeeding, no problem.  The federal courts say breastfeeding discrimination is not discrimination on the basis of sex.

Nancy Watzman at Muckraking Mom has an interesting suggestion as to why the BPA hasn't moved much since it was introduced – Congress isn't talking about it.  Using a nifty search engine called Capitol Words she searched how often the word "breastfeeding" was used by Congresspeople (as reported in the Congressional Record).  The result is pretty grim.  Since the BPA was introduced in May of 2007, the word "breastfeeding" was used in Congress less than 30 times.  Watzman notes that "golf" was discussed more often.  I checked and during the same period it appeared a few hundred times.  For fun, I threw in "trout."  Less than "golf," but it was used about 200 times.

Breastfeeding discrimination is sex discrimination and the BPA is necessary for women to have Civil Rights Act protection.  Much needs to happen to move the BPA forward but clearly at the very least legislators need to be talking about breastfeeding.

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