Wednesday, December 2, 2015

NY Times story on NWC’s settlement of NLRB cases

Today, the New York Times broke news of a settlement that followed after a prominent whistleblower organization and its affiliated law firm were accused of retaliating against staff for whistleblowing. That story is about me and my former co-worker Lindsey Williams. We had filed a labor Board complaint against the National Whistleblowers Center (NWC) after they fired us in 2012 for starting to organize a staff union.

Our case was actually against three entities as Joint Employers: the National Whistleblowers Center (NWC), the National Whistleblowers Legal Defense and Education Fund, and Kohn, Kohn & Colapinto, LLP (KKC). As a non-profit, NWC allowed the organization to apply for grants and receive tax-deductible contributions. As a private law firm, KKC allowed the organization to charge fees to clients and give the partners a personal ownership interest. The Fund acted as an intermediary and handled payroll and health insurance. Williams and I had worked for them from 2008 to 2012. At NWC, she was the Communications Director and I was the Legal Director. All three entities participated in our settlement.

They fired Williams, me and three other co-workers on November 5, 2012, after we announced our plan to organize a staff union. Organizing a union is legally protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”). We saw a union as a way to achieve transparency of the Joint Employer’s finances after the announcement of the $104 million award granted to one of our clients, UBS whistleblower Bradley Birkenfeld. At a press conference, Stephen Kohn announced that the organization received a portion of this award for attorney’s fees, but he did not say how much. The Joint Employer told the long time staff that despite our hard work and the influx of cash from the historic whistleblower award, the employer was unable to afford the raises it had promised earlier. These raises were promised because we had been working at very low salaries – and sometimes, without any salary at all. After we questioned the veracity of this claimed cashflow problem, the Joint Employer fired all five employees claiming lack of funds.

The Joint Employer offered the staff severance agreements. Williams and I refused to sign the agreement because it included a broad gag clause that would have restrained our freedom to speak about what happened to us. We believed the clause violated the NLRA and was against the stated mission of the National Whistleblowers Center.

So, Williams and I filed unfair labor practice charges with the National Labor Relations Board (“NLRB”) in January 2013. The NLRB investigated the charges and, in October 2014, found enough evidence to proceed with prosecution against the Joint Employer for wrongful termination. We reached a settlement weeks before the trial was to begin in January 2015.

As part of the settlement approved by the NLRB, the Joint Employer agreed to remove all mention of Williams’ and my terminations from their records and posted a notice to all employees that they would not be retaliated against for exercising their legal rights to work collectively to improve their wages and working conditions. Williams and I are prohibited from disclosing the financial terms of the settlement, but we can say that the case was settled successfully.

Visit fearinghonesty.org for more details about the case, including a summary of the facts, copies of the proposed unsigned severance agreements, the unfair labor practice charges, briefs filed in the case, the notice posting required by the settlement and a redacted copy of the final settlement agreement.

I immediately recognized the irony of getting fired by the National Whistleblowers Center. It is unfortunate when any employer chooses retaliation instead of responding to an employee's concern in a legal and ethical manner. All employers, and especially NWC, should follow the law and treat their employees with respect. Still, I appreciate the advocacy I accomplished as Legal Director of the National Whistleblowers Center, and the change brought me to a law firm with a better record for supporting independent professional judgment – Kalijarvi, Chuzi, Newman & Fitch. Our case exposes the risks all employees face when blowing the whistle and the need for comprehensive whistleblower protections.

The NY Times story quotes me as saying, “I recognized that I could wear it [my termination] as a badge of honor.” While this quote is correct, some context would add more meaning. I said this in response to a question of how my experience of getting fired is different from what my clients experience. For most of my clients, the experience of getting fired is embarrassing, distressing and devastating. As a whistleblower advocate, however, getting fired for raising concerns has been a “badge of honor.”

Williams said the following about her experience:
I thought I understood what whistleblowers felt when they were fired for doing the right thing, but this experience has put it into a whole new perspective for me. If you would have told me that I would be fired from the National Whistleblowers Center for standing up for myself and my coworkers, I would have told you that you were crazy. It just goes to show you that any worker can have his or her legal rights violated. I was stunned when the job I loved vanished with a voicemail. I am not sure that I will ever forget that feeling or how I felt in the aftermath. In fact, I hope that I don’t forget. There is a difference between intellectually knowing that whistleblowers suffer emotionally as well as financially, and actually knowing from personal experience what that worker is going through. I am a better advocate now because of my personal experience and I would not hesitate to raise my concerns all over again.
Williams and I are grateful that the NLRB decided to proceed with prosecution of our case. The NLRB staff was instrumental in facilitating the settlement. Still, the case was affected by the limited remedies under the NLRA. The law prevents workers from recovering attorneys’ fees and compensatory damages arising from retaliation. Last year, Representative Keith Ellison proposed the Employee Empowerment Act (H.R. 5280), a bill that would improve remedies for workers suffering from retaliation. The bill failed to pass before the end of the session. Williams and I are asking the Board of Directors of the National Whistleblowers Center (NWC) to publicly state that gag clauses in severance agreements or other employment agreements are against the core mission of the organization, violate the NLRA, and therefore will not be used or enforced by the NWC in the future. Members of the public can sign the coworkers.org petition to the Board of Directors online here.

Our experience has only served to strengthen our commitment to fighting for and protecting workers. After seven months of unemployment, I joined the law firm of Kalijarvi, Chuzi, Newman & Fitch where I continue to represent whistleblowers as a partner in the firm. After eleven months of unemployment, Williams joined the Strategic Research and Campaigns Department at the International Brotherhood of Teamsters as a Campaign Communications and New Media Specialist. In December 2014, Williams started a new position as Communications Director for the Pittsburgh Federation of Teachers.

I appreciate the work of our attorney, Larry Sherman, who represented us during our appeal and settlement negotiations.

For more information about this post or how you can protect your rights, please contact Richard Renner.

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