American labor laws normally protect workers from retaliation for organizing, but Americans saw a dramatic exception to the rule earlier this month: After the New York offices of local-news networks DNAinfo and Gothamist voted to unionized, owner Joe Ricketts shut down the publications altogether. The move appeared to be legal—a business is always allowed cease operations for any reason, “even if it’s purely retaliatory,” as New York University labor-law professor Cynthia Estlund explained to Pacific Standard at the time.
Now, two weeks after the shutdown, the journalists’ union, Writers Guild of America–East, announced it has negotiated improved severance terms for DNAinfo and Gothamist employees. Former employees will receive three months of full pay and benefits, even if they get new jobs, plus four weeks’ severance pay. They also don’t have to sign a non-disparagement agreement. The terms apply even to non-union former DNAinfo and Gothamist employees, a DNAinfo spokeswoman told Patch. It’s not clear if these non-union employees include DNAinfo and Gothamist-network offices outside of New York—in San Francisco, Los Angeles, Chicago, and Washington, D.C.—which had not unionized. A spokesman for the Writers Guild of America–East declined to answer any questions.
Writers Guild of America–East declined to provide Pacific Standard with a copy of the actual agreement, instead sharing only a general press release. Based on the release, labor-law experts consulted by Pacific Standard deemed the severance terms very favorable, especially considering that the union would seem to have little leverage after Ricketts decided to stop operations.
“I think that this is a very substantial agreement,” says William Gould, an emeritus law professor for Stanford University and a former chairman for the National Labor Relations Board.
“It is hard to evaluate the agreement with seeing it,” Indiana University–Bloomington legal scholar Kenneth Dau-Schmidt writes in an email. Still, Dau-Schmidt writes, “based on the press release, I would say the union achieved some important goals.”
While Gould and Dau-Schmidt both say the pay that former DNAinfo and Gothamist employees will receive is noteworthy, they disagree on the importance of a non-disparagement clause (or a lack of one). Gould says so long as both the union and the employees are satisfied with the parting terms, “Ricketts has little concern with disparagement and no incentive to require it.” Dau-Schmidt, however, writes that leaving journalists free from non-disparagement is a bold move:
When people lose their jobs, this upsets them and workers often know embarrassing things about the company or management. Writers are workers who are used to expressing themselves and would have avenues to express themselves in future articles or blogs.
It may be that the management knows there is little worth reporting from its former employees, or maybe this is a real achievement on the union’s part, Dau-Schmidt adds.
It remains to be seen whether journalists’ and other unions will be able to negotiate similarly generous terms should another anti-union company owner want to cease operations in the future. Gould thought Ricketts’ situation was “unusual.” While it’s not illegal to close your company after your employees unionize, it is illegal to threaten to do so while they’re still working. Ricketts had been open about his anti-union views—writing a blog post titled, “Why I’m Against Unions at Businesses I Create“—while his workers were still organizing. In addition, The New Yorker reported this week that management had repeatedly threatened that, if writers unionized, their publications would be closed, according to staffers. Although there’s little recourse now that the company is shuttered, it’s possible the union used Ricketts’ and his leaders’ past threats as leverage, Gould says.
“You’re not going to get too many people who come right out and say, ‘This is why we’re doing it,'” he says. “Most employers, they’ll try to keep their cards close to the vest.”
