Lactating men, toilet stalls and the arc of justice

Lactating men, toilet stalls and the arc of justice

By Christian Schreiber3 month baby

For the vast majority of workers, the laws that protect their rights operate silently in the background. This is especially true in California, where labor laws are frequently hailed – or assailed – as the country’s most protective for workers.

It’s easy to forget that the standards we take for granted today were once uncharted frontiers, but sometimes a reminder is in order: the provision of new rights always meets resistance, but seldom do we regret the expansion.

A recent example makes the point. The U.S. Supreme Court denied a breastfeeding mother’s last chance at an appeal last month. The plaintiff in the case, Angela Ames, alleged that she was wrongfully terminated from her job at an Iowa insurance company after returning to work from pregnancy leave. Ames requested a room where she could express breast milk, and was instead told by her boss to “go home and be with your babies.” The district court tossed the case on summary judgment, noting that her sex discrimination claims could not stand because “lactation is not a physiological condition experienced exclusively by women.” The 8th Circuit upheld the decision.

If you’re thinking this sounds like an article in the Onion, you’re not alone. Legal opinions relying on “Strange But True” articles make me think that my trivia-minded children have a too-near-term future on the bench. And I can’t be alone in being reminded of this:

Unfortunately, Ames and other women trying to breastfeed remain unprotected in many settings, and experience resistance in even unlikely places. Last fall, my sister-in-law was prepared to sit for her board exams in for Pulmonary and Critical Care Medicine. When she asked the American Board of Internal Medicine for accommodation to express milk during the 10-hour testing day, she was told to spend her break time pumping. Because as every lactating man knows, pumping is the same thing as studying, resting, eating, smoking, or taking a break.

In California, breastfeeding rights are well established. But because she lives in Indiana (where she is currently completing her fellowship), she enlisted help from me and the ACLU’s Women’s Rights Project. We wrote a letter explaining the shortsightedness of ABIM’s position. The good news is ABIM accommodated her request, and subsequently changed its policy. Ms. Ames was not so lucky.

California working mothers can now rely on Labor Code section 1030, which since 2003 has required employers to provide unpaid time and non-bathroom space for employees to express breast milk. When the bill mandating these changes was debated, however, the Chamber of Commerce predictably opposed the bill.

The Chamber’s position evolved over the next decade. Last year it did not oppose AB 1787, which would have required large commercial airports to provide places for nursing mothers. But the Chamber is nothing if not consistent. Instead of recognizing that today’s vanguard is tomorrow’s baseline, the Chamber still reflexively opposes any “new rights” in the workplace, typically tagging such efforts as “job killers.”

It is time our elected officials stop crediting the tired perspective of holdouts quivering at the edge of a civil rights moment. Time has a way of showing that the Chamber’s unbroken chorus of “impending doom” and “runaway rights” holds neither moral nor economic sway. And it never stands the test of time. A dozen years later, what California employer is clamoring to end the tyranny of nursing mothers being released from the confines of a toilet stall?

The Chamber’s economic perspective is just as faulty.. Consider the following two slides:

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If the Chamber’s perspective were valid, the laws enacted to protect workers in San Francisco should have crushed the City’s economic vitality. Plainly,they didn’t..

The Legislature is poised to consider any number of bills this session that will expand the rights of workers, including a renewed effort to guarantee equal pay for working women.  When the Chamber begins its craven “job killer” refrain, as it will both publicly and privately in the days ahead, it should be met with  skepticism. California legislators need not shy away from the reality that civil rights legislation has demonstrated a distinct, eastward migratory pattern.

If the arc of the moral universe is long and bends towards justice, short-term plans that offer only the promise of continued inequity should be met with a new chorus. “See me in 10 years if you’re still interested in reversing these rights. Otherwise, I hear they’re hiring in Iowa.”

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

Will the “real” employer please stand up? The consequences of the global shift to subcontracting, franchising, and outsourcing

Will the “real” employer please stand up? The consequences of the global shift to subcontracting, franchising, and outsourcing

By Anne Richardson

A fundamental change has taken place in the American workplace, and we are only now beginning to realize just how monumental it is.

A new book, The Fissured Workplace: Why Work Became So Bad for So Many and What Can be Done About It, by David Weil, makes the case that in every corner of the employment world, companies are increasingly shedding their employees, while maintaining control over the ultimate product or services to be provided under the “lead” company’s logo and brand. Beginning with peripheral services such as janitorial and security, and gradually including ever more central services, such as receptionists, truckers, and even lawyers, large employers are deliberately subcontracting out their work.

warehouse

Here’s how it works: A member of a loading dock crew is paid by one company, which is in turn compensated by another company, for the number of trucks loaded. That company, Schneider Logistics, manages distribution centers for Wal-Mart. Wal-Mart sets the price, time requirements, and performance standards that are followed by Schneider, which in turn uses those standards to structure its contracts with its subcontractors.

Why do they do it? Employers can reduce costs by pushing many of the responsibilities connected to being the employer of record down the chain to someone else. Yet by controlling the quality and price of their goods and services, they do not lose their reputations and the goodwill of their brands.

But should lead companies be allowed to have it both ways? Should they be permitted to control the production, delivery, and cost of goods and services, without sustaining any liability for the manner in which their contractors provide them? To take a real world example, if a company like Wal-Mart sets a price that is so low that the only way for suppliers to meet it is by underpaying their employees, isn’t that really Wal-Mart’s responsibility?

This new “fissuring” model has drastic consequences for employees who have been forced to trade in traditional jobs at a lead company, with benefits and a pension plan, for part-time temporary positions with no benefits. Pushing responsibilities down the chain often means that the direct employer is less well capitalized and less capable of maintaining wage and hour standards, or enforcing health and safety rules. Since the company on top sets the price, often as low as the market will possibly bear, the company on the bottom is forced to cut to the bone. Many of the subcontractors are small businesses that go under, and then reemerge as a different company, which results in there being no responsible party  to foot the bill when legitimate claims are made.

Fissuring also negatively affects the health and safety of   the broader public. Weil argues that a significant contributing factor of the devastating environmental oil spill caused by the BP Deepwater Horizon accident in 2009 was the extent of BP’s use of contractors. In order to shield itself from liability by maintaining less control over its subcontractors, BP did not sufficiently oversee the safety component of the operation. Other authors have similarly noted the increase of injuries and fatalities that have accompanied the rise of contracting in, for example, coal mining, construction, and trucking, among others.

To be sure, there are some who benefit from the practice. The third consequence of “fissuring” is to shift the surplus generated by businesses away from the workforce and to investors. This helps to explain why the operative trend in the American workforce is the widening income gap between the rich and the working poor. The gap between the wealthy and the poor is at a hundred year high.  For example, in 1965, the average CEO made about 20 times what the average worker made at any given company. By 2013, the ratio had grown to approximately 331 to 1. What’s fascinating is that a recent study found that not only did people worldwide grossly underestimate the ratio of CEO to worker pay, but that people across all backgrounds preferred a smaller pay gap.

Weil, who was appointed the Administrator of the Wage and Hour Division of the United States Department of Labor in May 2014, argues that since “[t]he modern employment relationship bears little resemblance to that assumed in our core workplace regulations,” laws and judicial decisions need to adapt current rules about workplaces to the realities of the modern world.

In every corner of the American workforce, the pressures to cut costs and improve the investor’s return have resulted in a worsened standard for the middle-class worker, as well as a worsened standard of health and safety. What can be done about it? Stay tuned for my next post.

Anne Richardson

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

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