Abstract
The basic realities of the American workplace make it unfortunately easy to see why this is so. A working mother needs a few things in order to breastfeed:
• Some reasonable amount of maternity leave so she can establish breastfeeding. Either this must be paid, or she must have enough household income that she can afford to take unpaid leave. And, of course, she must be protected from losing her job for taking even unpaid leave. • Assurance that she won't be fired for pumping at work when she returns. • Breaks at work to be able to pump. Again, these must be paid, or she must be able to afford to take unpaid breaks. • Finally, she needs a place to pump at work.
These things are available for some professional women. Our economy, however, is increasingly made up of low-wage jobs with no job security, little or no benefits, and, importantly, no union to advocate to improve those conditions. In short, most jobs lack every single thing that a woman needs in order to breastfeed.
A labor-themed review of the recent history of American work shows that this state of affairs is not inevitable. In the middle part of the 20th century, increasing productivity led to higher wages for American workers. As a result, the incomes of rich and poor Americans started to become more equal. This trend continued until the 1970s. Since then, although productivity has continued to increase steadily, median incomes have stagnated. 4 For the bottom third of families, real family income has declined 29% in real terms in the last 30 years, even though families work more hours now than they did 30 years ago. 5 At the same time, the proportion of overall income going to the top 10% has skyrocketed. 6 In other words, since the 1970s, income inequality has been on the rise: the rich have gotten richer, the poor have gotten poorer, and the middle class has shrunk. 7
One reason for this trend is a huge drop in the portion of the workforce that belongs to a union. From the 1940s through the 1960s, about a third of U.S. workers were represented by a union. During that period, the middle class flourished. Successful unions raise wages for their own members, an effect that we in the business call “the union advantage.” In 2012, the median earnings of union workers were 28% higher than for those of non-union workers. 8 When unions are strong, either in a particular industry or in society in general, they exert an upward force on non-union wages as well.
The portion of workers in unions has been on the decline since the late 1960s, in the wake of changes to federal labor laws, corporate decisions to outsource highly unionized industries, and the rise of professional “union avoidance consultants.” Today, less than 7% of private sector workers, and 11% of all workers, are represented by unions, down from over 30% at the labor movement's peak in the mid-20th century. 9
The result is that a quarter of all workers now work in low-wage jobs. Many of the jobs that were eliminated during the recent recession were middle-class jobs, but most of those created during the recovery are low-wage. By 2020, almost half of new jobs will be low-wage service sector jobs. 10 Eight of the 12 job categories that will grow the most by 2020 are low wage, including retail salespeople, home health aides, food preparation workers including those working in fast food, teachers' assistants, nurses' aides, and childcare workers. 11
Today's workforce also has fewer and fewer stable “real” jobs. More than 30% of the workforce is made up of contingent, precarious, or part-time workers, including day laborers, temporary employees, and on-call workers. 12
Part of the problem is the minimum wage, which has remained stagnant at $7.25/hour since 2009. This is a poverty wage. Working full-time at minimum wage results in an income of $15,080/year, which is below the poverty level for a family of just two. Less than half the states set their own minimum wage rates higher than the federal level. And, the minimum wage, because it is not regularly adjusted for inflation, buys 30% less than it did 40 years ago. 11
There is a myth that low-wage jobs are entry-level jobs that go mostly to teenagers or to those working for small struggling businesses. But, in fact, two-thirds of low-wage workers work for large corporations. 13 The 50 largest employers of low-wage workers have largely recovered from the recession and are profitable again. 13 One example is fast food industry; fast food jobs are one of the fastest-growing in the nation. McDonald's pays an average of $7.63/hour, 14 and the average age of a fast food worker is 29.5 years. 15 The New York Times ran a photo profile recently called “Living on Minimum Wage,” which included a 45-year old grandfather working at McDonald's who said he eats McDonald's the last 2 weeks of the month because he has no food left. 16 Those in minimum wage jobs are disproportionately women and people of color. 11
The Service Employees International Union (SEIU) represents 2.1 million workers, the majority of whom are women. Many of SEIU's members work in jobs that I've mentioned as fast growing and low wage. Many of these are “pink collar” professions: homecare workers, nurses' aides and other hospital and nursing home staff, teachers' aides, and childcare workers. 17
To give you a snapshot of the work lives of at least some of our members, I will describe the workforce at an SEIU-represented employer called Sullivan and Associates. Sullivan operates some 77 community-based group homes for the developmentally disabled in Massachusetts. These homes are staffed 24 hours a day, 365 days a year. Direct care workers, many of whom are immigrants, are paid $9–10/hour for strenuous work with Sullivan's developmentally disabled clients. Before these workers formed a union with SEIU in 2010, they got a $1 raise after 4 years on the job, but otherwise they could never expect an increase in their base wages. At those rates, a worker trying to support even a small family on a full-time paycheck would be living below the poverty line.
A survey we conducted of Sullivan workers in 2010 revealed that part-time schedules were common. Over half worked a second job. Nearly a third had childcare responsibilities. A substantial proportion relied on car pools or public transportation to get to work.
In this work setting, a worker with a baby would likely take as little time off as possible when she gave birth because she would have no maternity leave benefits and would not be able to afford to take unpaid leave. It would be very unlikely that she would be able to pump breastmilk unless her employer provided some accommodation for her because her workplace is a small house or apartment with perhaps one small office area that all the employees use for punching in and out. And, as an at-will employee, she would have no assurance that she wouldn't be fired even for asking about pumping at work.
Forming a union did not instantly transform these jobs into good middle-class jobs. But, it has provided workers with guaranteed base wage increases, improved leave provisions, a “just cause” standard for termination, and a grievance procedure they can pursue if they feel they are being treated unfairly.
I will now turn to the legal landscape that governs the American workplace. Unfortunately, in the absence of a union, workplace laws in the United States are cold comfort for a working mother like a Sullivan employee who wants to breastfeed.
The presumption in American law is that workers work “at will”: they can be fired for any reason or no reason, unless the reason is specifically prohibited by law. The alternative, a standard by which workers cannot be fired except for “cause,” primarily exists only in unionized or civil service workforces.
There is no requirement of paid parental leave in the United States. The Family and Medical Leave Act (FMLA) requires that workers get 12 weeks of unpaid leave per year for medical or care responsibilities like the birth of a child. But, nearly half of working mothers are not covered by the FMLA because they have been at their job for less than a year, don't work enough hours, work for small employers, or are classified or misclassified as independent contractors. 18 Only two states, New Jersey and California, require at least some paid parental leave. 19
The federal Pregnancy Discrimination Act (PDA) prohibits discrimination on the basis of pregnancy, childbirth, or a “related medical condition.” Unions were a key force in passing the PDA in the late 1970s, in much the same way they fought earlier battles to win a national minimum wage, the end of child labor, a 5-day work week, and civil rights laws.
Although getting the PDA enacted was an immense legislative effort, the real work of unions started after the law was passed. As Judy Scott, the General Counsel of SEIU, wrote in an article marking the 30th anniversary of the law:
To institute workplace change quickly and on a large scale, there is a need for a social movement organization with a communications and enforcement system that can penetrate the on-the-ground worksites of America. When functioning effectively, unions are that vital system.…The organizational strength of the labor movement kicked into action after passage of the PDA to make sure the law was actually converted into day-to-day employment practices, often through new contract provisions, and then put into practice on the shop floors of our factories, down in our coal mines, and in the offices and worksites of our service sector. In these ways, union workplaces set a pattern for positive changes across entire industries.
20
Despite the fact that the PDA still remains in effect, a report released earlier this year by the National Women's Law Center reveals that today employers often deny pregnant women simple accommodations that they need. The report cites cases like that of a pregnant fast food worker being fired after she was denied permission to drink water on the job and eat during her breaks. 21
One way to look at this is as a failure of the courts—and it is that, because practices like this should be illegal under the PDA. But another way to see it is as a walking back of the on-the-ground progress that unions made in workplaces more than 30 years ago in making the promises of the PDA a reality.
Turning finally to legal protections for breastfeeding or lactation, as I noted, the PDA bars discrimination on the basis of “medical conditions” related to pregnancy and childbirth. Women who have had children can tell you that lactation is definitely related to pregnancy and childbirth. But, courts have generally found otherwise, viewing breastfeeding as simply a lifestyle choice. 2 They have also rejected claims under the Americans with Disabilities Act because breastfeeding and lactation are not disabilities. 2
The Affordable Care Act (ACA) for the first time created a federal requirement that employers provide “reasonable break time” and a private space, other than a bathroom, for working mothers to pump. That is great progress. But, the breaks do not have to be paid. The law's requirements also do not apply to workers who are exempt from the Fair Labor Standards Act's overtime requirement. So salaried workers are not covered. And employers with fewer than 50 employees can be exempted if they can show it would be an “undue hardship” for them to comply.
Perhaps most important is that the ACA does not contain an antidiscrimination provision. This has not been tested in the courts yet, but this may mean that it will still be legal to discriminate against a woman who asks for pumping breaks.
I will close by noting a few things that can be done in the face of these challenges.
The first is to fight to make your own workplaces into models. Find out what the polices are—about accommodating pumping for new mothers, but also about pay, job stability, and maternity leave and other benefits for lower-level employees, temps, and independent contractors who work at your workplaces. And, find out what the policies are about employee attempts to form unions. If you are the employer, make these good policies. If you aren't, push the employer to adopt good policies. Change can and does happen more easily when there are more examples showing that higher standards are possible.
A second front is legislative advocacy. Doctors can be persuasive champions in urging courts and administrative agencies to interpret existing legal protections for working mothers broadly. For instance, the meaning of the ACA's pumping accommodation requirement is still untested. If the Department of Labor asks for public comments or there are court cases filed, the Academy of Breastfeeding Medicine should be there explaining why those protections are important for women's and children's health.
Finally, I hope I have made the case that the labor movement is important to this fight.
Collective bargaining is the one vehicle in civil society that allows workers to bargain for better workplace policies without having to pass legislation. Workers with unions can negotiate for higher pay, which will make it more possible for them to take unpaid parental leave under the FMLA. They can also bargain for benefits, including leave, and for specific changes to their worksites to accommodate nursing mothers. The “just cause” provisions and grievance procedures that are common in union workplaces also provide protection for nursing mothers when legal protections are weak or nonexistent. As leaders in your field, you are in a position to push others to accept employee attempts to unionize and to speak up for the benefits that can flow from workers having a voice on the job.
Footnotes
Disclosure Statement
No competing financial interests exist.