Lawyer: Where’s the journalist who leaves Halifax supposed to get a job?

The broad noncompete agreement that Halifax Media employees are being asked to sign from California to Florida may hurt journalists and journalism, but it appears enforceable in most of the states where former employees of the New York Times Regional Group work.

UPDATE: Late Tuesday evening, Halifax told former NYTRG employees that the policy would not apply to them.

The agreement limits those who sign it from working for another media company — in print, online or on the air — for two years in markets that Halifax currently serves or plans to serve. That agreement remains in effect even if Halifax fires the employee.

Noncompete agreements like this one are state-specific, said David Ardia, assistant professor at the UNC School of Law. “States can themselves decide whether or not noncompete agreements are valid in their jurisdiction.” And if they’re valid, they decide how they are enforced. “So a one-size-fits-all approach is typically not what employers would be doing with noncompetes if they have employees in multiple states.”

In fact, one of those states — California — where Halifax has three papers, does not allow this type of noncompete agreement, though employees at The Press Democrat in Santa Rosa, North Bay Business Journal and Petaluma Argus-Courier have been asked to sign them, according to reports.

The remaining states — Alabama, Florida, Louisiana, North Carolina and South Carolina — where Halifax bought NYT regional papers are in the south, which are generally “happy to enforce noncompetes,” Ardia said.

“It’s the outer limits of what Florida law might consider enforceable,” said Alison Steele, a partner with Rahdert, Steele, Reynolds & Driscoll, which represents The Poynter Institute.

Because noncompete agreements are more common for broadcast journalists, the union representing many of them has “made it a priority in contract negotiations,” said Mary Cavallaro, assistant national executive director for news & broadcast for the American Federation of Television and Radio Artists.

It has also successfully advocated for legislation to make noncompetes unenforceable in New York, Massachusetts, Maine, Connecticut, Illinois, Arizona and the District of Columbia.

Though these contracts are bound by state law, the meaning of “markets” is no longer limited simply to local communities. “With the dawn of all these platforms and people’s ability to access media from anywhere, the issue is becoming more complicated than geographical boundaries,” Cavallaro said by phone.

Where they are enforced, states must determine that noncompetes are reasonable from the employer’s standpoint but also from the employee’s, and enforcement can’t violate public policy. In this case, public policy may extend to the First Amendment.

Is the noncompete reasonable?

“This reasonableness requirement looks at the purpose of the noncompete, and if there isn’t a business reason, if it’s just sort of punitive, then the courts are gonna be less likely to enforce the noncompete agreement,” Ardia said by phone.

“A noncompete clause for a small-market newspaper reporter making $30,000 a year? Or less? That seems unnecessarily harsh, putting young journalists at a significant disadvantage in a brutal job market,” said Poynter’s Kelly McBride by email.

One factor in determining whether it’s reasonable is whether employees can exercise choice. How long did the employees have to review the agreement? Was there coercion? If the state has no restrictions on firing, then it would not be considered coercion to be told you would be fired for not signing, Ardia said.

Does it violate public policy?

One “broad limitation in the public policy standards is you can’t have a noncompete agreement that makes it impossible for someone to earn a living or practice their trade at all,” said Ardia.

Noncompetes have “had a horrible impact” on journalists’ ability to earn a living, Cavallaro said.

Given the difficulty of finding a job (in journalism or otherwise) and the difficulty of moving in a frozen real estate market, this concern seems especially relevant to those wanting to challenge the noncompete’s enforceability.

In Tennessee, a court decided in 2008 that a noncompete agreement could be unenforceable where it impinges on one’s freedom of speech, Ardia said.

“It’s detrimental to the public interest to be forcing journalists, at a time when we need more journalists practicing the craft … to have these kinds of agreements in place to make it so someone cannot leave their current employer and engage in news reporting,” Ardia said. “That diminishes our access to information healthy to a functioning society.”

Despite those potential challenges, the Halifax agreement “doesn’t look to be so far outside the mainstream that it would on its face be unenforceable,” Ardia said.

“If I were advising an employee, I’d say, ‘Do not sign this,’ ” said Steele. “Two years is a long time to remain out of work. … Where’s the person who leaves this company supposed to get a job? Where’s the person who’s fired from this company supposed to get a job?”

Steele and Ardia both said employees should consult a lawyer before signing a document like this one. Steele also suggested employees ask for an extended deadline if they haven’t yet had the opportunity to consult a lawyer.

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  • Anonymous

    Way to engender trust and goodwill among your newly added team members. The backpeddling of “oh wait, this doesn’t apply to you guys from NYTRG” is easy to see through. They screwed up and are trying to save face. This is the kind of thing you’d expect to see in an episode of Mad Men or perhaps Wall Street. Employers who continue to push non-competes, especially those as blatantly aimed at intimidating employess as this one, only demonstrate their propensity to live in a bygone era where they were able to dictate the terms of employment with a heavy hand. All employers (and I am one) need to wake up and realize employees volunteer their time for a paycheck and other intangibles that make the experience meaningful to them. We ignore that fact at our peril.

  • Anonymous

    Way to engender trust and goodwill among your newly added team members. The backpeddling of “oh wait, this doesn’t apply to you guys from NYTRG” is easy to see through. They screwed up and are trying to save face. This is the kind of thing you’d expect to see in an episode of Mad Men or perhaps Wall Street. Employers who continue to push non-competes, especially those as blatantly aimed at intimidating employess as this one, only demonstrate their propensity to live in a bygone era where they were able to dictate the terms of employment with a heavy hand. All employers (and I am one) need to wake up and realize employees volunteer their time for a paycheck and other intangibles that make the experience meaningful to them. We ignore that fact at our peril.

  • http://www.poynter.org Poynter

    An update for commenters: Halifax has withdrawn the noncompete and will not require current employees to sign it, only new ones. Details here: http://journ.us/xSR7lD –Julie

  • http://pulse.yahoo.com/_JSUNTE67TUHS36QAOVMR4LC5HA Pink

    That’s not entirely what the clause says. They would not be able to get a job with a competing company. For example, if they worked for the Florida paper and they quit, they couldn’t take a job with another local media company or possible even in Florida. But they are free to work for a media company that does not compete with their former employer. This clause that Halifax is pushing on employees is disgusting and it makes me angry. If you don’t want an employee to leave and work against you with another company, then treat them right. But if you don’t care that they leave, then you shouldn’t care that they go work for a competitor and bring that paper down, too.

  • http://twitter.com/adambanksdotcom Adam Banks

    Hang on. A company can fire you – it’s their choice that you don’t work for them any more – and you’re not allowed to get another job in the same industry for two years? And there are states with laws that support this?

    I know you don’t favour European-style employee protection, but seriously, Americans, don’t you think you might have wandered just a little too far in the other direction? Like, to the moon?

  • http://twitter.com/BarnGroover Barn Groover

    It should by now be clear that the owners of Halifax Media are engaged in nothing less than a jihad against traditional (i.e. liberal) journalism. To target an entire division of New York Times newspapers for acquisition is a wet dream of the far right. Notice that they steered the editorial and news pages of their first acquisition – the Daytona Beach News Journal – immediately rightward. Watchdog journalism was jettisoned and replaced by a relentless pro-business drumbeat. Do you think the same plans are not in place for the newly acquired titles? You will also notice the new company made no effort to communicate to the news gathering staffs before the acquisitions. While there were no immediate layoffs, there were also no reassurances that Michael Redding and company have any respect whatsoever for their reporting staffs or even the mission of news reporting. That’s because they intend to use their reporters to reward their biggest advertisers and fill pages between the ads – nothing more and nothing less. Their two-year rule at the Daytona paper has been through coercion and intimidation, as foreshadowed in the new employee handbook: You are an at-will employee who can be fired at any time for any reason. Don’t forget it. Did any of the public statements by Halifax so far convey a respect or intention to continue the traditions of an independent press? No. The strategy here, in addition to maximizing ad revenues and strengthening the value of the properties as marketing vehicles, is to emasculate the power of low-paid and high-minded journalists so they can no longer hinder the agendas of the owners’ political and business cronies.

  • http://pulse.yahoo.com/_WPX3Q3KCLBDWCMTA7JL3DB47RI Myles S

    It totally sucks, but how badly do you want the job. Sitting here right now, I say I would never work for such an organization. But if I were desperate, and Halifax had a job for me … how desperate am I? 

  • http://twitter.com/cyr3n Julia Howe

    Halifax Media’s non-compete is horrendous and totally violates public policy. 
    http://www.dekkerdreyer.com/blog/call-for-protest-of-halifax-media/

  • http://twitter.com/KarolinaReiss Karolina Reiss

    I hope none of the journalists sign that agreement. I doubt that it is enforceable in California and some other states to begin with but litigation with your ex-employer is never a good way to spend your time or money.

  • Anonymous

    halifax stinks and should not be welcomed to american journalism by anyone. . 

  • http://pulse.yahoo.com/_JSUNTE67TUHS36QAOVMR4LC5HA Pink

    These types of clauses are disgusting and pathetic. Not only are they wrong, but how can anyone say that these are fair? I am shocked that something like this can even be enforced. This basically ruins a journalist’s career if they were ever to get fired or leave a job. When a company owns papers in several different states, the journalist has a very slim chance of getting work. This kind of stuff makes me angry.