No Whistleblowing for David, Only Goliath

"You will never work in nonprofits again"... "You have to look out for your family"... "You're throwing away your career and your connections"... "You will be sued"...or worse yet, "You could be Fosterized!!"

These, along with many other thoughtful, caring and understandable cautionary words have been spoken to me and, I am sure others, who have come forward regarding what they consider to be unethical practices in their work place - no matter the field. And yet, here I am, like many others now and before me. In the midst of the chaos, in the midst of a scary endeavor, in the midst of something I think is the right thing to do.

In 2013, the New York State Legislature apparently thought that oversight and transparency of nonprofit organizations was so important that they enacted The Nonprofit Revitalization Act of 2013, which took effect on July 1, 2014. To note, New York's nonprofit sector is the nation's largest - so the New York legislature should lead the nation in laws and protections. A critical new requirement for all organizations is to revise or adopt a whistleblower policy. The Act dictates that whistleblower policies must prohibit retaliation against any director, trustee, officer, employee or volunteer who reports illegal or fraudulent activities - or even suspected activates. However, there is a caveat - only people that belong to an organization with 20 or more employees and an annual revenue in the prior year of at least $1 million are afforded this protection. Does that sound like you? Well, you are one of the lucky ones.

I worked in an organization who fell about 14 people short but whose income was about four times that of the minimum requirement. This organization is not an anomaly. According to a report by the Urban Institute only 23% of nonprofit organizations nationwide have a budget larger than $1 million. And, according to a Philanthropy New York/Foundation Center report, organizations in New York City with budgets over the required $1 million (those with income between $1 million and $5 million) had a median staff size of 17 in 2009. Nonprofit employees, overall, may seem like a "fringe group" but in reality, it is a significant part of the economy; the same report notes that the nonprofit sector accounted for 14% of the workforce in New York City in 2000-2001.

So, what does this mean? This means that in the state with the largest nonprofit sector in the country whistleblower protection is not afforded to those employed by or involved in the majority of organizations. Why then would the New York Legislature require a certain number of employees and a budgetary requirement that circumvents the majority of nonprofit organizations? WTF? But I guess things could be worse, the whistleblower policy was originally only going to apply to organizations with 20 employees who had purple hair, nose rings, and were five-foot-three-and-a-half inches tall, but that would have been arbitrary (wink, wink).

This sets up a system in which basically the majority of organizations could skirt the law's reach, if they so choose - not unlike the healthcare legislation. Nonprofits can assumingly be comprised of the following, for example, and still not have to enact whistleblower protections:
- Organization A: $100 million budget, 1,000 volunteers but only 18 employees
- Organization B: A celebrity, a hedge fund manager and a politician on the board, $5 billion budget and only two employees

This is unfortunately an inherently unfair situation for people at most organizations--who purposefully keep small staffs so that the most money possible can go directly to their missions.

I have worked at larger nonprofit organizations - and perhaps with irony - when I needed help (although I never encountered any illegal or unethical practices at them), I could turn to my supervisor, the human resources department, my supervisor's supervisor, and so on. In a small organization, it is far more difficult to report issues and find support. As an employee you have your Executive Director; if you can't turn to s/he, then you might be lucky to have a board member to whom you can go - but not often. And, as an Executive Director of a small nonprofit, you only have the board. The way in which the law is written now is leaving behind the people who are perhaps in most need of whistleblower protection - and it makes no sense.

If you have read these and The New York Times articles, then you know I was fired and I have been threatened with a lawsuit for filing a complaint with the Attorney General. So this lack of protection has and is affecting me. A revised law can help the person feeling stuck, feeling scared, feeling like they want to do what is right but who is currently being forced to weigh real personal responsibilities against those of the greater good.

We know that nonprofits make enormous contributions to society. To protect the integrity of the sector, a revision to this law is needed. In the meantime, nonetheless, I hope you will step forward if you find yourself in a situation in which unethical practices are taking place. And, remember if you don't see my blog for a while it's not first and ten at Hoffa -I mean Giants Stadium, I am probably just on vacation!