On December 23, 2021, Attorney Generals from sixteen US states signed a letter addressed to US Senate Majority Leader, Hon. Charles E. Schumer and Minority Leader, Hon. Mitch McConnell. The letter concludes that, “We urge you to prioritize and pass the Pregnant Workers Fairness Act as soon as possible on behalf of working women, pregnant people, and businesses both large and small across the country.”
What are the politics behind the joint AG letter to US senate leaders? Politics is defined for this article as taking actions to influence another’s behavior. Understanding politics of the PWFA is very important. Be aware, the PWFA passed the US House with bipartisan support and received Senate Sub-Committee approval mid-2021. The PWFA is on the 2022 Senate calendar but, as of this writing, has not received a date for vote by the full Senate. The PWFA will apply to all US employers with 15 or more employees.
Maternity protection v PWFA
Rich economies need women to work. But women present a special health and safety risk at work when they become pregnant. How do rich economies manage this risk?
The three leading regional economies in the world are Asia, Americas, and Europe. China is the leading economy in Asia, Brazil is the second leading economy in the Americas – second only to the US, and Germany is the leading economy in Europe. China, Brazil, and Germany ratified the ILO’s Maternity Protection Convention No. 183. Ratification obligates each country to establish law to conform to ILO’s standard and its recommendations. Obligations include paid maternity leave, prohibition on dangerous or unhealthy work, and risk assessments. Convention No. 183 is a roadmap that leads to logical destinations.
Politically, the US will not ratify ILO Convention No. 183, primarily because big business doesn’t want to be saddled with paid maternity leave. The PWFA is the US’s workaround to Convention No. 183. PWFA creates roadmap uncertainty for, among other things, management destinations for dangerous and unhealthy work and risk assessments. PWFA, for example, places the initial burden for risk assessment and its ultimate conclusion upon the pregnant worker. Paid maternity leave is last among risk management hierarchy of controls for pregnant and breastfeeding workers under 183 logic. Making PWFA work absent paid maternity leave will create great uncertainty for both workers and employers.
The PWFA failed to become law since its introduction in the 112th Congress because the Act lacked adequate support from big business. The PWFA will become law during the second session of 117th Congress because it has the backing of big business.
A diverse group of highly influential US manufacturing and construction businesses, and their supporting associations, among others, are urging Congress to pass the PWFA as an “important advancement toward ensuring health, safety and productivity of our modern workforce.” Consider a sample of businesses and their organizations that now officially endorse the PWFA:
The US Chamber of Commerce is the largest lobbying group in the US, representing over three million businesses. The National Association of Manufacturers (NAM) is the US’s largest industrial trade association. About 80% of US Fortune 100 manufacturers are NAM members. The Associated Builders and Contractors (ABC) represents more than 22,000 firms in the US non-union construction industry. ABC is among businesses ranked with the “largest overall contributions to federal elections over the past two decades” (wiki).
The National Retail Federation represents the largest private-sector industry in the US that “contains over 3.8 million retail establishments, supporting more than 52 million employees that contribute $2.6 trillion annually to GDP” (wikipedia). The National Restaurant Association is the largest foodservice trade association in the world that represents more than 500,000 restaurant businesses.
Add some manufacturer names to this list — Dow and BASF are, respectively, the first and second largest chemical manufacturers in the US; Microsoft and HP are among the 2021 Fortune 100 list of the largest US corporations by total revenue; Nestlé is the largest food manufacturer in the US; Mars, Inc., primarily a food manufacturer, is the 4th largest privately held company in the US; Johnson and Johnson manufactures over 24 well-known healthcare brands and is the fastest growing healthcare company in the US; and L’Oréal USA leads the #1 beauty market in the world with more than two-thirds of L’Oréal products sold in the US manufactured in the US.
Back to the first question, what are the politics behind the state Attorney Generals joint PWFA support letter to leaders of the US senate? Among the important roles of a state AG is to propose and support legislation that is in the public interest. AG’s are lawyers – at least in mindset. Would your answer change knowing that the American Bar Association, founded in 1878, and is the largest voluntary association of lawyers in the world, with more than 400,000 members, voted in 2021 to officially (Resolution 511) endorse the PWFA? Remember, lawyers have split commitments. About one-half of the legal community represents the plaintiff and the other half represents the defense.
When the US House passed the PWFA (H.R. 2694) in 2021, they were provided with a list of 250 organizations that endorsed the Act. Official endorsements, however, continue to grow. For example, the AG and ABA endorsements were not among the initial 250.
Also, not among the initial 250 list were the United States Conference of Catholic Bishops (USCCB). The USCCB wrote to US senators in 2021 that USCCB supports the PWFA to “make the workplace a safer environment for nursing mothers, pregnant women, and their unborn children.”
Where is the political intersection between USCCB’s stanch pro-life and NARAL Pro-Choice America positions? NARAL reportedly has 2.3 million members and was among the initial 250 endorsing organizations for the PWFA? After you locate the intersection between USCCB and NARAL’s PWFA support, reconcile that mutual support with OSHA’s HazCom hazard statement for chemicals “may damage the unborn child.” If you cannot reconcile pro-life and pro-choice interests through good faith communications with a pregnant worker, perhaps a member of the ABA can help you clarify this task. This is just one among the many health and safety risk assessments that will be stimulated by passage of the PWFA.
The US has modeled the PWFA with similar provisions found within ADA law. The ADA roadmap, however, lacks clarity of health and safety destination compared to ILO No. 183. All of the above organizations and businesses, among many others, individually or collectively, will seek to influence the direction, destination, and pace of the PWFA. Get ready for a lot of backseat drivers.