Getting Pumped for Health Care Reform

Fifteen years ago when my son was an infant  his mom wanted to keep feeding him breast milk.  She was working at the time, and we bought a little pump for the purpose.  Unfortunately, she was afraid her employer would think it was weird, and so she had to sneak around as if having a cigarette in the restroom.

Women will not have to sneak around any longer to express milk. As part of the new health care bill the Fair Labor Standards Act was amended so that employers with more than 50 employees are now mandated to provide certain benefits to women who wish to breastfeed or pump.

First, employers must provide "reasonable breaks" for women to express milk for infants.  The breaks must be reasonable both in terms of time, and in terms of number of breaks.  Second, the employer must give women a private location in which to express milk.  This private location has to a location other than a restroom.  Although the breaks must be given, there is no requirement that the breaks be paid.

Several states, including California, Colorado, Illinois, and New York already have breastfeeding laws on the books.  The new FLSA amendment provides that if an employee resides in a state with a more generous law (for example, paid breastfeeding breaks), then the employee is entitled to whichever law is more generous, state or federal.

In the end expressing milk was too much for my then-wife.  It was less an issue of privacy and more an issue of the hassle of pumping, preserving, and transporting the stuff home.  It's a comfort to know, however, that those who want to express themselves can.  La Leche League rejoice.

Is Supreme Court Nominee Kagan Good for Unions?

The first question my grandparents always had on any public policy issue was always "is it good for the Jews?"  I have the same question for Obama's policies and nominees, replacing the word "Jews" with "union."  Obama's pick to replace Justice Stevens on the Supreme Court, Elana Kagan, is definitely good for the Jews, bringing the Court's complement of Jewish judges to three.  But is she good for unions?

So far it's hard to tell.  Kagan has never been a judge, so there are no written opinions to go by.  And, she does not have other writings  outlining her philosophy on labor, or any other issues for that matter.  She is, as some have noted, a bit of a cipher.  Labor leaders are cautiously supporting Kagan, probably hoping for the best.

One hopeful sign comes from the Village Voice, http://blogs.villagevoice.com/runninscared/archives/2010/05/elena_kagan_and.php,which points out that Kagan's brother, Marc Kagan, was a labor leader and reformer in the Transit Workers Union in New York.  Kagan's brother, who is now a teacher, recently wrote a letter in the Civil Service weekly Chief Leader extolling the virtues of unions in fiery, passionate language:

"Here's a heretical thought: the actual purpose of unions is to improve workers' lives by challenging the free market: to win a higher than "market" wage, to make it hard for the employer to change working conditions or fire the higher-paid worker. We shouldn't hide these ideas under a rock like we're ashamed of them; just the opposite. When unions won the 8-hour day, or the weekend, or pension plans, unions defended the idea that working people's lives and rights were socially more important than employers' profits and rights. And we said that those victories would tend to spread, even into nonunionized sectors, and generally make people's lives better. And that was true, for decades.

"Today we are playing this movie backwards. As people in the nonunion sector have faced big roll-backs in wages and benefits, we hear them complain that unionized workers should also "give back." It's an indication that we have, at least temporarily, lost the battle of ideas in this country, that we can't successfully explain to our fellow workers that it is in their interests too if we are able to hold the line somewhere, rather than engage in a frantic race to the bottom."

This type of rhetoric is rarely aired in public these days.  While we certainly can't expect Kagan to publicly embrace such sentiment, at least we know that she has family members who understand unions, embrace unions, and are passionate advocates of the labor movement.

Sexting, Texting, E-mail and More

Tune in tonight to hear my colleague Amy Rosenberger discuss workplace privacy issues at work:
TONIGHT LIVE at 7pm: "Sexting, Texting, E-mail and More: Privacy at Work"

This should be an excellent show and a good way to catch up on how new technologies are affecting the workplace

The Departure of Andy Stern - Thank You and Good Night!

Andy Stern's sudden announcement that he was resigning this week as President of the SEIU caught nearly everyone by surprise, perhaps even Sten himself, as news of his resignation was leaked by union sources prior to the official announcement.  The media-savvy Stern issued a video of himself later in the week announcing his resignation.

Like George Costanza saying "thank you and good night" and going out on top, Stern is in many ways at the apex of his career.  He has Obama's ear, has increased membership in the SEIU, and is probably the most recognized name in labor next to Hoffa.  Yet Stern also has been a controversial, polarizing figure -- taking his union out of the AFL-CIO, raiding UNITE HERE and engaging in rough and tumble union infighting.  His sudden departure also demonstrates what many critics  have said, that Stern's number one priority is Stern -- his mid-term departure leaves a power vaccum and will inevitably weaken the union while the executive board fights over his successor.

Stern has also been accused of being a "top-down" labor leader, negotiating deals with employers and then letting members in on it.  A perfect example of the top-down view can be seen in this anecdote.  A friend told me yesterday that after hearing Stern on the radio she wanted to get information about forming a union at the nursing home where she works.  She went on the SEIU website to find out who to contact and how to organize a union.  While the website was full of laudatory press on Stern, political announcements, and self-congratulation, she could not find any information on how to actually contact a local union in her area that could help her out, or any helpful information about organizing.  That, in a nutshell, is the problem with the SEIU as well as most other large international unions -- they are focused more on Washington DC politics, themselves, and not enough on workers in the field.

More on Massey's Mine Disaster

As the New York Times reports, the Upper Big Branch mine owned by Massey had a serious history of safety violations - and workers were evacuated three times in the past two months for dangerously high methane levels:
http://www.nytimes.com/2010/04/07/us/07westvirginia.html?hp.  Naturally Don Blankenship, the CEO of the Company denies that there were any issues, and, incredibly, shifts the blame to the government, claiming that "the Mine Safety and Health Administration would never have allowed the mine to operate if it had been unsafe."  He also claims that safety violations are nothing more than a normal part of the mining process.  Huh?  The MSHA levied massive fines against this mine, fines which the company fought and appealed at every turn.  What Blankenship really means is that worker safety - or lack thereof - is simply a cost of doing business for the company.  With 2.9 billion in revenue in 2009, what's a few million in fines per year for safety and environmental violations?

W. Va. Mine Disaster -- An AvoidableTragedy?

The mining disaster at the Upper Big Branch coal mine in West Virginia is a reminder that there are still dirty dangerous jobs in this country where you might clock in to work, then clock out permanently.  Particularly when your employer is more concerned with profit than safety.

Massey Energy, which owns the non-union mine, has a history of violations for not properly ventilating methane gas -- last year it was fined $382,000 dollars for ventilation issues.  The cause of the blast at Upper Big Branch has not yet been determined, however, in any mine explosion methane is almost always the culprit.

The CEO of Massey, Don Blankenship, is virulently anti-union and presided over a bitter drawn out strike at other Massey facilities in 1985.  The company has had some record making profits.  It also holds some records for largest fines for safety and environmental violations:  In 2006 it paid a record 4.2 million dollars in civil and criminal penalties after two miners died and it was found that safety violations contributed to their deaths.  In 2008 it paid a 20 million dollar settlement for violations of the Clean Water Act.  Naturally, Blankenship thinks that global warming is a fallacy cooked up by crazies.

It's too early to tell what happened in West Virginia that possibly killed  25 workers  One thing we do know is more concerned with profitability than safety and the external costs of its operations on the rest of us.

http://2politicaljunkies.blogspot.com/2010/04/massey-energy-hundreds-of-safety.html
http://www.dailykos.com/story/2010/4/5/854434/-at-least-7-dead,-19-missing-after-W.-VA-mine-explosion

Even an Ass Finds Truffles Sometimes

Every so often I win a case that makes what I do worthwhile.  Today I got an unemployment decision that made me feel like a million bucks.

The employee in the case was laid off, then the employer hired him back on as an "independent contractor" for another couple of months to finish a project.  All of the employee's working conditions were exactly the same after the layoff as before, except he got a 1099 and no benefits.

The man filed for unemployment and received it -- but then got cut off when the employer claimed he was an independent contractor, and therefore not eligible for benefits.  The unemployment office also told him he would have to pay back the unemployment he had received.  He appealed, but did not send his appeal certified or get a proof of mailing.

When he came to our office the employee was panicked that he would have to pay back the money and lose benefits.  He is older, and has not been able to find employment.  He said he would have to move in with his grown children if he could not get benefits.

At the hearing the employer showed up and, miraculously, supported the employee.  The problem for the employee was that his appeal was untimely because the unemployment office had not received it.  Under the law, that should have been it.  Luckily, the unemployment referee allowed me to present the case on the merits as well as on the timeliness issue. 

The decision came in this weekend and the employee won.  On the timeliness issue, the referee stretched to find he had filed his appeal on time, due to the testimony he gave about mailing it and so forth.  And on the merits she found that he was an employee, not an independent contractor.  I am sure she stretched on the timeliness issue because on the merits it was so obvious that he was not an independent contractor.




The case gave me satisfaction because it was such an obvious injustice and because the only reason he would have lost is procedural.  To mix metaphors and sayings, the law is an ass, but sometimes even an ass finds a truffle.