Poor business people. They’re always in a dilemma. Most want to be as generous as possible to employees. But they don’t want to see some generous act turn around and bite them – which seems to happen in this state.
I saw that on full display a few weeks ago when I was among some company operators who were discussing a new proposed state bill. The business people were torn. They were itching to be supportive of the pro-employee bill, but they openly fretted about how it might end up hurting them.
For clarity’s sake, let’s start at the beginning.
A bill was introduced recently in the statehouse that would force businesses to create lactation rooms. If the bill were to pass as proposed, companies would have to provide a room that is not a restroom so that new mothers would have the privacy to express milk in the workplace.
The rationale: Two of every three new mothers return to work after childbirth, but only 52 percent have workplace lactation-support policies, according to the bill’s author. Women with private spaces at work are more than twice as likely to breastfeed their babies at six months old, which is recommended.
The business operators in my group totally got that. “I’ve got no problem with this,” said one Valley business owner, who hasn’t been known to be supportive of regulations. He explained that he has lots of women employees, and the lactation rooms could be a meaningful improvement for some of them.
Another chimed in: If women instead of men had been the ones to operate businesses historically, lactation rooms would have been the norm 100 years ago. They probably would have been required in building codes from sea to shining sea for decades.
Most in my small group nodded. They wanted to be supportive.
But then we talked about the provisions in the bill. And that’s when support started peeling away.
For one thing, lactation rooms couldn’t be just any simple, private room. They must have hot and cold water. They must include a table, a sitting space, access to electricity and include a refrigerator. The rooms could double as a conference room or multipurpose room, but the new mother’s need to use the room must take priority. Which makes you wonder how you could schedule a conference for your conference room.
The business operators immediately pointed out problems. It’s not cheap to carve out a room complete with plumbing and electricity. Beyond that, lots of Valley area small businesses simply don’t have the square footage to create a special room. And what do you do if you operate, say, a delivery service or kiosks in shopping malls? What do you do if the workplace is a construction site or a street corner because you employ sign spinners? What do you do if, for whatever reason, you don’t employ women of childbearing age?
Can you get an exemption for any of these situations? Apparently not. Although there is a “hardship” exemption for businesses with fewer than five employees in the proposal, it is not defined what constitutes a hardship. So, yeah, apparently you’d have to create a lactation room even if all of your female employees are nuns.
Our business group quickly saw that the proposed law was coming down on businesses as an inflexible mandate, one they would have to comply with, whether it made sense for them or not. It would be costly and, for some, all but impossible to comply with.
But that wasn’t the big objection. The big objection was that employees could file civil actions for violations.
Under the state’s unique Private Attorney General Act, employees can file suit for some regulatory infractions. That sounds fairly benign, but the reality can be lethal. A PAGA lawsuit can cost a business not hundreds or thousands of dollars in fines, as you might expect, but millions in judgments and settlements. At least two businesses in the San Fernando Valley last year paid more than $1 million each in PAGA settlements, one because employee break times were not documented and another because it allowed employees the flexibility to take their lunch break whenever they wanted – in violation of a regulation that says employees must take a lunch break no later than five hours after starting work.
Most of the business operators in my little group ended up opposing the proposed law. But they did it with kind of a sigh of resignation over their dilemma. While several of them saw the value in the concept of creating private rooms for new mothers, they objected to the heavy-handed and inflexible way the state law was proposed. And more than anything, they hate the feature that allows employees to file civil lawsuits – potentially ruinous ones, at that – for any little infraction.
It would be a generous gesture for companies to create lactation rooms. But our group of business operators know what will happen if this law passes. It will come back to bite them.
Charles Crumpley is editor and publisher of the Business Journal. He can be reached at firstname.lastname@example.org.