The Providing Urgent Maternal Protections ("PUMP") for Nursing Mothers Act offers enhanced provisions for breastfeeding mothers. Meanwhile, the Pregnant Workers Fairness Act (PWFA) requires companies to provide specific accommodations to pregnant employees. Both were signed into law in December 2022.
The regulations aim to broaden protections for women, ensuring that pregnant and nursing mothers do not become targets of workplace discrimination. With new legislation to navigate, employers must familiarize themselves with the nuances of each law and take steps to ensure compliance.
Codified Protections for Nursing Employees
The PUMP Act mandates that all companies — regardless of size — provide employees with time and a private space to express milk at work for up to a year after the birth of a child. The law was enacted on December 29, 2022. Its enforcement provisions, which allow workers to sue employers violating the law, followed shortly after, on April 28, 2023, with a few industry-specific exceptions.
The PUMP Act expands protections granted to nursing mothers under the Fair Labor Standards Act. While the previous Break Time for Nursing Mothers Act only covered non-exempt workers, the PUMP Act extends protections to millions of salaried exempt members of the workforce.
Under the new law, employers must provide reasonable break time to express milk, and allocate a private place, shielded from view, where employees can express milk. It cannot be a bathroom, but there is substantial flexibility beyond this. The space must be functional for pumping, and can be as simple as a reserved conference room available as needed or a dedicated cubicle shielded from view with a curtain or partition that ensures privacy.
The law applies to all employers. In narrow cases, certain smaller employers with fewer than 50 employees can establish that compliance provisions would cause an undue hardship. As such, workplaces of all sizes should have a plan to accommodate nursing mothers, irrespective of whether they currently employ pregnant or nursing workers.
Companies that fail to meet these standards could face lawsuits from their employees. Those who are not given adequate time and space to pump can file a complaint with the U.S. Department of Labor. In addition, workers harmed by their employer's non-compliance can seek the legal and equitable remedies available under the FLSA. Remedies can include reinstatement, promotion, payment of lost wages, or additional liquidated or compensatory damages, and make-whole relief for any economic losses suffered as a result of the violation.
Enhanced Accommodations During Pregnancy
Like the PUMP Act, lawmakers introduced the PWFA to fill gaps in existing legislation. While the Americans with Disabilities Act (ADA) prohibits discrimination against employees with disabilities, and the Pregnancy Discrimination Act (PDA) bars discrimination based on pregnancy, childbirth, or related medical conditions, the law previously granted few explicit protections for pregnant workers in need of accommodations.
PWFA went into effect on June 27, 2023, and applies to any company with 15 or more employees. Under PWFA, employers must offer accommodations that support workers with limitations linked to pregnancy, childbirth and related conditions unless the organization can prove that doing so would constitute an undue burden.
The possible interpretations of PWFA are broad. The U.S. Equal Employment Opportunity Commission (EEOC) is expected to issue final regulations to help employers understand its implications. However, the EEOC proposed rule provides specific examples of possible reasonable accommodations, and those that would likely deemed reasonable in virtually all cases. These accommodations include, but are not limited to, allowing employees to carry water and drink, as needed; allowing an employee additional restroom breaks; allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and allowing an employee breaks, as needed, to eat and drink.
Exactly what form accommodations take will depend on the
individual employee's needs, and organizations cannot dictate which accommodations they provide. Instead, the law calls for an interactive process whereby workers and employers discuss the employee’s known limitations and potential accommodations. The PWFA also contains anti-retaliation language. This stipulates that companies can't take adverse actions against employees based on their request for accommodations.
Adapting to New Regulations
Much of the legislation in the PWFA and the PUMP Act is aimed at codifying protections that previously existed within a narrower context. As a result, some companies will only need to make minimal adjustments to their established procedures. Many have likely been providing a lactation room to nursing employees for over a decade under the Break Time for Nursing Mothers Act.
That said, organizations should review their policies and verify that they comply with the legislation. Companies can anticipate new requests for accommodations, particularly under the PWFA. To prepare for this, employers should have a designated procedure in place to respond to requests. Organizations should also train supervisors to navigate this process effectively. Often, managers will be the first to field requests and grievances.
Lastly, employers must be aware of regional and local ordinances. The federal legislation does not negate state and city laws with more robust provisions for pregnant and nursing mothers.
The PUMP Act and the PWFA clear the way for a safer, fairer workplace for pregnant and nursing employees. Employers who haven't taken steps to comply should revisit their policies and practices immediately to verify they are granting the appropriate accommodations.
In addition, companies need to ensure that both their leadership teams and front-line supervisors understand the ramifications of the new legislation. By reinforcing awareness of these laws at every level of the organization, companies can create an environment that not only meets its legal obligations but champions the rights and needs of its workforce.
Patrice Arend is a partner in the Detroit area office of Taft.
The warped political spirit of James Brien Comey, Jr. lives on.
He has been reincarnated in the person of Robert Kyoung Hur, the U.S. special counsel appointed by Attorney General Merrick B. Garland to investigate Joe Biden’s handling of classified materials after leaving the vice presidency.
First, some relevant political history.
In 2016, Comey, as FBI director, was investigating the use of private emails by Hillary Clinton when she was secretary of state. At the time of the investigation, she was the Democratic presidential candidate running against the Republican Donald Trump. She was the hands-down favorite to win.
In July, Comey announced that the FBI found no criminality on the part of Clinton, stating that there was no evidence that Clinton intentionally transmitted or willfully mishandled classified information. Thus, charges were not warranted.
But on October 28, 2016, just 11 days before the November 8 election, Comey dropped a bombshell by writing to Congress that he was reopening the Clinton investigation. Then, just a few days before the vote, he again exonerated Clinton.
However, the damage was done and many, including Clinton, believed Comey cost her the presidency.
Now, fast forward some 7 ½ years and we have Hur, repeating Comey’s political sabotage, in his year-long investigation of Biden.
In his 350-page report last week, Hur concluded that “no criminal charges are warranted in this matter.” Biden’s action did not establish criminality beyond a reasonable doubt, he maintained.
Despite this conclusion, Hur added that the investigation "uncovered evidence that Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”
The materials included "marked classified documents about military and foreign policy in Afghanistan, and notebooks containing Mr. Biden's handwritten entries about issues of national security and
foreign policy implicating sensitive intelligence sources and methods."
Hur said FBI agents recovered the materials from "the garages, offices, and basement den in Mr. Biden's Wilmington, Delaware home."
Fair enough. Those are acceptable and important facts about the investigation. If only Hur had left it there.
For whatever reason, Hur abandoned his legal examination and added, inexplicably, hard-heartedly and unnecessarily, that Biden is a “sympathetic, well-meaning, elderly man with a poor memory” and it would have been “difficult to convince a jury that they should convict him…of a serious felony that requires a mental state of willfulness.”
Apparently unable to stop himself, Hur added that Biden’s memory was “significantly limited” and his “memory appeared lazy.” He said Biden demonstrated “diminished faculties and faulty memory.”
If that were not enough, with insensitivity that is hard to comprehend, and seemingly wanting to cause the president pain, Hur wrote gratuitously:
“He did not remember, even within several years, when his son Beau died."
(Beau Biden died at 46 of brain cancer in 2015.)
Even in the no-holds barred nature of national politics, this went beyond the pale. Hur did not offer legal reasoning for his conclusion not to charge Biden. Instead, he based his decision on a political rationale, and an ugly one at that.
New York Times Columnist Paul Krugman, obviously angry, wrote that to imply Biden suffers some mental deterioration because he could not remember the year his son died in the midst of a world crisis (Gaza) is “disgusting.” One letter writer to The Times called it a “political hit job.”
Biden, enraged and emotional, responded at a hastily called press conference just hours after the report’s release to the public.
In remarks that surely touched any parent and anyone with a sense of humanity and decency, the president, close to tears, said:
"How in the hell dare he raise that? Frankly, when I was asked the question, I thought to myself, it was none of their damn business.
“Every Memorial Day we hold a service remembering him, attended by friends and family and the people who loved him. I don't need anyone to remind me when he passed away.”
The president pointed out that he still wears a rosary on his wrist which belonged to his late son. He appeared to choke up.
The GOP, of course, wasted no time exploiting Hur’s report, endlessly quoting Hur on Biden’s alleged diminished mental acuity. And, we can expect the report to be cited in political advertising when the expected Biden-Trump rematch takes off later this year. Trump and his loyalists are not exactly known for compassion.
Perhaps Hur was never able to purge himself of Trumpism politics. After all, he was appointed by Trump to oversee one of the largest U.S. Attorney's offices in the nation as the chief federal law enforcement officer in Maryland from 2018 to 2021.
Regrettably, Biden should have waited to respond until he had his emotions under control. At the press conference, he gave his critics more ammunition when, discussing the Hamas-Israel war, he mistakenly referred to the president of Egypt, Abdel Fattah el-Sissi, as the president of Mexico.
The good news? The controversy will probably fade -- at least somewhat -- as the campaign heats up although we can be confident that Republicans will do all they can to keep the Hur report before the electorate. Also, while the Comey crisis occurred just 11 days before the election, we still have nine months before this year’s vote.
However, we can be confident of the following: Hur will take his place, next to Comey, in the infested swamps of American presidential campaign history.
Berl Falbaum is a longtime political reporter and author.
That number represents the national debt when I started writing this column.
That number represents the national debt when I started writing this column.
About four hours later, the debt had increased almost $105 million — $104,920,899 — to reach $34,059,003,967,653.
It grows so fast that it is almost impossible to write down the amount at any given moment. Try it by Googling “national debt clock.”
The national discussion about the debt is generally vague and nobody seems to care very much. We have taken the attitude: Out of sight, out of mind. If we don’t acknowledge the problem, it doesn’t exist.
The media generally cover the politics of the debt debate but very rarely address the substance of what the government owes or what it means if it continues to increase unchecked.
Conservatives in Congress are wrong in threatening (at this writing) a government shutdown if the deficit isn’t addressed, but they are right that we cannot and should not permit the debt to continue to grow.
We have kicked the proverbial can down the road so many times that the can is now pretty much mangled; not much left of the can. Even if we started paying off the debt today, it would take decades to put the country back in the black.
The even larger question is: How do you pay off $34-plus trillion? The nonpartisan Peter G. Peterson Foundation provided some fascinating facts on what $34 trillion means. Here are some of them:
--$34 trillion is roughly equal to the values of the economies of China, Japan, Germany, India and the United Kingdom -- combined.
--The deficit amounts to $252,000 per household or $99,000 for every person in the U.S.
--If every U.S. household contributed $1,000 a month to pay off the deficit, it would take more than 21 years.
--The debt is enough to cover the cost of a university four-year degree for every high school graduate for 103 years.
--Every day we spent $1.8 billion in interest and in ten years interest will be more than double what it is today. Interest will become the fastest growing part of the federal budget.
Forbes magazine warned two years ago when the debt stood at $28 trillion that, “The U.S. national debt is rising at a pace never seen in the history of America.”
The USDebtclock.org, which is located in New York City and tracks the U.S. debt and other major financial indexes, predicts that the deficit will reach $89 trillion by 2029 -- just six years away -- even without increased spending.
Who’s to blame? Both parties.
The deficit totaled $10.6 trillion when Barack Obama took office in 2009; $19.9 trillion when Donald Trump became president in 2017; and $27.8 trillion when Joe Biden became commander-in-chief in 2021.
This is not to suggest that these presidents are solely responsible for the deficits. Congress, of course, which has appropriation responsibilities also deserves much, if not most, of the blame.
Left unchecked, we face the possibility of a major decrease in our standard of living; higher interest rates which would slow the economy; a stock market crash; and perhaps devaluation of the dollar which could lead to higher costs for goods and services and a recession along with more inflation.
Some day -- the financial wizards don’t know exactly when -- we will have to face the music, to use a cliché, by either cutting spending or raising taxes. Both are anathema for politicians.
True, raising taxes or cutting spending come with their own problems, but the status quo is unacceptable and unsustainable.
"We are projected to spend more on interest payments in the next decade than we will on the entire defense budget," said Maya Macguineas, president of the Committee for a Responsible Federal Budget. “How can anyone possibly think this trend is sustainable? We're running off the rails at an alarming rate. We need to do better."
The financial deficit is peanuts compared to the deficit of the political qualities we need to build a stable and secure financial future.
Given what is needed from our “leaders” and the state of our politics in Washington, the only thing we can be sure of is that the deficit will continue to grow and grow uncontrollably.
Solving this fiscal crisis -- and it is a crisis -- will require political courage, foresight, statesmanship, leadership, compromise, and a commitment to apolitical governing.
I’m sure you noticed, we don’t have a huge supply of these qualities in Washington.
Berl Falbaum is a longtime political reporter and author.
As a result of Nikki Haley’s failure some weeks ago to acknowledge that slavery was the cause of the Civil War, the issue has become a focus of national debate.
The Confederacy surrendered in April 1865 at Appomattox and was dissolved.
The Constitution was amended to abolish slavery (13th Amendment), provide for equal protection of law (14th Amendment), and the right to vote regardless of race, color, or previous condition of servitude (15th Amendment). No politician today is promoting revocation of those amendments.
What then is the relevance of the Civil War to current-day politics?
The answer resides in unhealed political divisions that Donald Trump purposefully advantaged to gain election and then exploited in the first term of his presidency.
Fulfilling his campaign promise, the Trump Supreme Court justices struck down 49 years of precedent based on Roe v. Wade. The decision in Dobbs v. Jackson is every bit as divisive to contemporary American values on the issue of reproductive rights as the Taney Court’s 1857 decision in Dred Scott v. Sandford was to the concerns of pre-Civil War Americans with the institution of “negro slavery.”
By denigrating the “Negro African race” as “altogether unfit to associate with the white race,” and expanding conflicts over slavery across State borders, the Dred Scott decision was a flashpoint to pre-Civil War politics.
As a direct result of Dobbs, there is now an alignment of “Free Choice States” and “Right to Life States” closely following the division of states for and against slavery at the onset of the Civil War. It is equally a flashpoint to current-day politics.
The issue of slavery in pre-Civil War America also split apart the three major American Protestant churches along the same fault line.
In the 1843 Triennial Convention of American Baptists, abolitionists on the planning board for foreign missions rejected slave owners who applied to be missionaries on the ground that they could not be true followers of Jesus.
Baptists in the Southern states broke away and formed the Southern Baptist Convention, which remains the largest evangelical denomination in the country today.
Methodists and Presbyterians later followed by also dividing into pro-slavery and anti-slavery factions.
In pro-slavery factions, evangelical support for the institution of “Southern slavery” as the “slavery of the Bible” was unabashed. Defenses based on scripture appeared in church publications and the published letters of prominent clergy.
The appalling history of Southern evangelical support for slavery, the Confederacy and thereafter for “Jim Crow,” legalized segregation, and prohibitions on inter-racial marriage is detailed in Joel McDurmon’s 2019 book, “The Problem of Slavery in Christian America.”
Every time one might be befuddled by the unswerving fealty that so many Christian evangelicals demonstrate to Donald Trump, it is instructive to remember that these individuals share heritage to religious communities that once vociferously defended slavery.
In the third volume of a three-volume work by Yale professor David Brion Davis entitled “The Problem of Slavery in the Age of Emancipation,” Davis describes the “animalization” of those enslaved along racial lines as one in which enslavement is justified based the purported inferiority of certain races and their supposed incapacity to rise above status as mere animals or other lower life forms.
This technique of denigration is a staple of MAGA Republican attacks on a different target group today: immigrants. In disparagement of non-white immigrants attempting to cross the Southern border, Trump has variously referred to them as “vermin,” an “infestation” and similar derisions.
In this and other MAGA chaos he released to motion, Trump believes, like Taney before him, he is singularly positioned to heroically preserve a “way of life” premised on racism.
Another parallel between the time of the Civil War and today is evident in the “Lost Cause of the Confederacy” and “The Big Lie” that the 2020 Presidential election was stolen by Democrats.
The Lost Cause was falsely propagated in the immediate aftermath of the Civil War and remains gospel to this day in many regions of the South. It asserts that conflicts over slavery were not the cause of the Civil War, but that the South was the victim of a “War of Northern Aggression” preventing the exercise of legitimate states’ rights. The narrative casts white Southerners as victims.
The “victim” in the narrative of “The Big Lie” is, of course, savior Donald Trump.
Unsupported by evidence in innumerable court cases, the “Big Lie” assets that Trump lost the 2020 election as a result of voter fraud.
Finally, there is the parallel to political violence. After seceding from the Union, Confederate forces attacked federal forts in the South to secure munitions.
Federal troops at Fort Sumter resisted, which sparked the four-year Civil War costing the lives of 620,000 soldiers.
Because secession is no longer a viable option, Trump pursued another route: the violent attack on Congress by his supporters to secure and prevent vote certification on January 6, 2021, and to overturn the legitimate Presidential election outcome by fraudulently substituting “alternative slates of electors.”
It was treason in 1861. It may have only been insurrection in 2021.
So, yes, discussions about parallels between the Civil War and today’s politics are relevant, highly relevant.
Samuel Damren is an attorney and author in Ann Arbor.
At a New Hampshire town meeting in late December, Republican presidential candidate Nikki Haley was asked to explain the cause of the Civil War.
She replied that it was “basically how the government was going to run” and “the freedoms of what people could and couldn’t do.”
The former governor of South Carolina, the first state to secede from the Union and home to the first battle of the Civil War at Fort Sumter, failed to mention slavery. The New Hampshire voter who asked the question was incredulous.
Haley stuck to her answer.
If, as Haley contended, the cause of the Civil War arose from differences about “how the government was going to run,” the differences must be self-evident in the founding document for the government of the Confederacy: The Constitution of the Confederate States, March 11, 1861.
I suspect very few readers have ever examined that document. Doing so is not the heavy lift you might expect.
After substituting “Confederate States” for the “United States,” 95 percent of the Constitution of the Confederate States mirrors the framework for government set forth in the Constitution of the United States and its amendments through 1861.
There are substantive differences, but other than provisions relating to slavery, they are not significant.
Examples of these differences include the term of the Confederate president which was limited to a single six-year term.
Confederate states were referenced in the preamble as “independent sovereigns,” and later authorized in the document to act in “compacts,” without regulation by the Confederate federal government, for specified but limited purposes such as the improvement of waterways and navigation.
The Confederate Constitution permits state taxation of vessels traveling between Confederate states.
None of these or similar differences over the method and rules of governance caused the Civil War.
As to differences between “the freedoms of what people could and couldn’t do” which Haley highlighted but did not expand upon at the town meeting, the Confederate Constitution recites verbatim the Bill of Rights contained the first ten amendments of the Constitution of the United States.
However, there is one “freedom” expressly protected in the Confederate Constitution that is not mentioned in the Constitution of the United States: the freedom to enslave.
As to the practice of slavery as it then existed, the Confederate Constitution expressly incorporates the terms of the Fugitive Slave Act. Consistent with the Dred Scott decision, the Confederate Constitution also expressly notes that slaves owned in one Confederate state may be transported to other Confederate states without change in their legal status as property.
Everyone at the time knew that in the immediate aftermath of the Confederacy’s formation contests between the Union and Confederacy over territories and members would be fierce. Article I, Section 9, proviso 2, of the Confederate Constitution anticipates this struggle by authorizing its Congress “to prohibit the introduction of slaves from any State not a member of, or Territory not belonging to, this Confederacy.”
By so doing, the founders of the Confederacy sought to force states and territories that might wish to continue the practice of slavery to make a divisive choice – either join the Confederacy or face economic isolation and the loss of viable markets for your slave property by choosing to remain with the Union.
Four states did later join the Confederacy. The tactic partially back-fired in the northwest counties of Virginia, which split off to remain with the Union as the new state of West Virginia.
Article IV, Section 3, proviso 3 of the Confederate Constitution also anticipated the future expansion of slavery by the Confederacy into “new territory.” It mandated that “in all such territory the institution of negro slavery, as it now exists in the Confederate States and Territories, shall be recognized and protected by the Congress and by the Territorial government.”
The formation of a separate Confederate government with these bellicose policies and objectives concerning slavery made Civil War inevitable.
Within a week after making her remarks in New Hampshire, Nikki Haley walked them back and acknowledged that slavery was the cause of the Civil War. But it was a lost opportunity for her and for the country.
Just think if, when originally asked, she had given the following answer to the New Hampshire voter:
“What was the cause of the Civil War? Slavery was the cause of the Civil War. It was a profound failure of our form of government that it came to that, but it did. We struggle to this day with the consequences.
“Slavery was replaced with legalized racial segregation, and that was wrong, too. Much work remains for us to right those wrongs and fully heal our country. We can only do it together and we must.
“As a person of color and the former governor of a state that was once part of the Confederacy and later practiced Jim Crow and legalized segregation, I am best positioned to complete that healing. I ask you for your vote that I might do so.”
Thinking that this moment might have ever occurred in today’s polarized times is fanciful.
We still can only dream.
I’ll start by asking all the judges, lawyers, and others professionally involved in our justice system a question.
It is this: Let us assume you were convicted of a murder you did not commit and were sentenced to life imprisonment.
Then you learn that four attorneys knew you were innocent because their client, already serving a life sentence for two other murders, confessed to them that he committed the crime for which you are imprisoned.
But the lawyers remained silent for more than 2-½ decades because the legal code of ethics prohibits lawyers from divulging confidential information they receive from clients.
Question: Would you commend the lawyers and tell them to remain silent while remaining in prison?
Farfetched? Not at all.
I wrote a book, (“Justice Failed, How ‘Legal Ethics’ Kept Me in Prison for 26 Years,” Counterpoint Press, 2017), on Alton Logan, a black man in Chicago, who served 26 years under those exact circumstances.
Logan was wrongly convicted of fatally shooting a McDonald’s security guard, a murder committed by another man, Andrew “Gino” Wilson, who later was arrested and convicted in the fatal shootings of two other police officers.
Wilson confessed to killing the McDonald’s guard, but prohibited his lawyers from divulging his confession.
The lawyers drafted an affidavit stating that Logan was innocent, locked the paper in a strong box and one of the lawyers kept it under his bed for 26 years.
That is not justice, and I don’t care how you try to defend that behavior. It is indefensible, unjust, abominable, unconscionable – use whatever adjective you want – to knowingly, and “knowingly” is the key word, let the innocent rot in jail. That is not ethical; it is the antithesis of ethics.
Indeed, during my research, I discovered that another man, Lee Wayne Hunt, was in prison under the same circumstances. When his lawyer went to court and testified that Hunt was innocent, the judge would not accept the testimony, stating that he violated lawyer-client confidentiality.
Hunt died in the Maury Correctional Institution in Raleigh, N.C., after serving 30 years for a crime he did not commit.
Logan was “luckier” than Hunt. One of the four attorneys asked Wilson whether, if he died in prison, they could break their silence. Fortunately, he agreed. When Wilson died in prison, his lawyers went to court with the evidence that Logan was innocent and, he was freed. If Wilson had not given his permission, Logan would have remained in prison because the U.S. Supreme Court ruled in Swidler & Berlin v. United States that lawyer-client confidentiality survives death.
Also, Logan escaped the death penalty because the jury, deciding his fate, voted 10-2 to have him executed, but the death penalty required unanimity from the jury. Two votes saved his life.
Since the book’s publication, I launched a one-man campaign to try and have the ethics code changed. I believe it would not be difficult to amend the code and still protect privileged information received from clients while setting the innocent free.
In the book, Logan and I offer several proposals which would do just that. As a matter of fact, three of the four lawyers who kept silent, whom I interviewed, also gave us recommendations on how to change the code.
During the last four years, I have contacted The American Bar Association, state bar associations, and numerous legal organizations, all to no avail.
The State Bar of Michigan, which I contacted in 2017, apparently thought I had a point and established a committee to study the issue. I was interviewed but since then, every time I checked, I was told the committee was still working on it. My goodness, U.S. participation in World War II lasted only four years.
The most outrageous provision in the ethics code holds that a lawyer may come forward if the client did not pay outstanding legal fees. In other words, a lawyer’s fees are more sacrosanct than human life.
So, I ask again, if you (lawyers, judges, etc.) were in prison under these circumstances or – I will expand that to include that not just you but your loved ones were imprisoned while innocent – would you ask the four lawyers to remain silent? Would you shrug your shoulders and simply accept your fate, no matter how unjust?
Most important, would you defend the code?
That’s what I thought.
Berl Falbaum is a veteran journalist and author of 11 books.
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