Business of News

I learned the hard way why non-competes are bad for journalists

June 16, 2017
Image via Pixabay.

There’s a silent scourge creeping around newsrooms, one with origins in trade publications and tech-led new media: non-compete agreements. In their most typical form, these agreements bar reporters and editorial staff members from working at competing publications for a period of six months to a year after they leave. Publications that use them argue they need non-competes to cover the cost of the training they provide employees. Some even argue their reporters are privy to trade secrets.

This is absurd.

For the media companies that wield them, non-compete agreements are a risk-free insurance policy against a competitive labor market. For the reporters who sign them, they’re just another barrier to job mobility in an increasingly precarious industry. These contracts keep beat reporters from the few jobs they are most qualified for and have the best chance of getting. They effectively ask reporters to commit to six months of unemployment to change jobs within their profession.

I know this because a non-compete I signed on my first day at legal news website Law360 in 2013 later derailed my career. After two years and a promotion at Law360, during which time colleagues left for a variety of competing publications, I accepted an offer in the fall of 2015 to join the Reuters legal news team covering the business of law. I considered the move to be a step up in my career. During my second week at the new job, a lawyer from Law360 wrote in a letter to the general counsel of Reuters that I was at risk of violating my non-compete and nondisclosure agreement. He asked that Reuters “take immediate steps to ensure” I did not use the “critical and sensitive proprietary information” I obtained at Law360. I never found out what Law360 meant by that: There’s no secret sauce to scouring court filings in search of a good story.

For the reporters who sign them, non-compete agreements are just another barrier to job mobility in an increasingly precarious industry.

Reuters fired me two days later, citing my lack of disclosure of the non-compete. Today as a freelancer, I’m making about 40 percent less than my starting salary at Reuters, which included generous overtime and health insurance, among other benefits.

Law360 removed its non-compete provision from editorial employment contracts a year ago in a settlement with the New York Attorney General following an investigation into the potential illegality of the clauses. For me and other reporters who were blocked from taking new jobs, the move was welcome but too late.

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Many media outlets have not been fazed by the AG’s investigation. Last week, BuzzFeed revealed that social and video news company NowThis News requires low-level staff members to sign non-compete agreements barring them from taking jobs at Mic, Vox, BuzzFeed, Vice, CNN, Complex, VaynerMedia, and Conde Nast. This week, CNN reported that the conservative website Independent Journal Review has asked all staffers, including entry-level employees making $35,000 per year, to sign a non-compete that bars them from working at any competing business for six months after leaving.

Mashable also has a non-compete agreement for all of its employees. A copy of the agreement stipulates that editorial employees not work for a competitor for six months after leaving. The list of competitors is long, and includes The New York Times, The Wall Street Journal, BuzzFeed, The Verge, Vice, Business Insider, Re/Code, Vox, Wired, Fast Company, and HuffPost.

It’s worth noting that none of the contracts negotiated by New York’s top journalism unions, the NewsGuild (which represents Thomson Reuters, The New York Times, and Time Inc.) and Writers Guild of America East (representing The Intercept, Gothamist, and Slate), contain non-compete provisions. Law360 reporters voted to unionize with the NewsGuild last summer; the organizing effort was catalyzed by the company’s decision to enforce its non-compete against me.

There are plenty of other non-compete agreements that don’t get reported on. Since I was fired, I’ve heard from several reporters, many at financial or technical trade publications, who have been asked to sign non-compete agreements as a condition of their employment or before getting a raise. Some of these agreements only bar them from working at competing trade publications, but others prohibit moves to larger general-interest publications like Bloomberg.

A representative for NowThis told BuzzFeed its non-compete clauses have never been used to prevent employees from taking other jobs, and a spokesman for Mashable told me the same. That shouldn’t comfort any journalists: I remember a Law360 HR representative telling me the same thing on my first day in 2013. (A representative for Law360 did not respond to my request for comment on its non-compete agreements and my particular case.)

Since I was fired, I’ve heard from several reporters, many at financial or technical trade publications, who have been asked to sign non-compete agreements as a condition of their employment or before getting a raise.

If these companies don’t plan to enforce their non-compete agreements, there’s no compelling reason to have them in the first place. But there’s the rub: They might use them. There’s no guarantee they won’t suddenly decide to enforce the contracts if business needs change.

If and when they do, most journalists will have little recourse. When executives sign non-compete agreements, they’re usually making a salary that would allow them to mount a legal challenge with little difficulty. After I was fired, I spoke with many lawyers who told me Law360’s contract was probably illegal. I did not, however, have $50,000 to cover the cost of proving it in court.

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Reporters typically aren’t shy about speaking truth to power, but when it’s truth to the power that pays us, we tend to err on the side of caution. Matters are made even more complicated by non-defamation clauses within some reporters’ employment agreements. Mine at Law360 barred me from “cast[ing] negative light” on the company or any of its corporate partners during my employment—“or any time thereafter.”

Employment lawyers are often quoted saying the kinds of sweeping non-compete agreements used for low-level editorial employees are unenforceable. Unfortunately, a non-compete’s enforceability matters far less than its potential chilling effect. I know reporters who have consulted lawyers before switching from one low-paying job to another, just to make sure they don’t get sued.

After I lost my job at Reuters, the legal risk associated with me because of the non-compete agreement was enough to block me from other opportunities in the legal news market. I wasn’t able to begin one of my current steady freelancing jobs, at Bloomberg Law, until Law360’s contract was lifted via its settlement with the New York Attorney General nine months later. Had the state authority not intervened, I would have had to wait a full year from when I left Law360.

Journalists and journalism both benefit when reporters and editors can change jobs and gain exposure to different news-gathering and writing styles across publications. We shouldn’t need to hire lawyers to do so.

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Stephanie Russell-Kraft is a Brooklyn-based freelance reporter covering the intersections of religion, culture, law, and gender. She has written for the New Republic, The Atlantic, Religion & Politics, and Religion Dispatches and is a regular contributing reporter for Bloomberg Law. Follow her on Twitter: @srussellkraft.