Signed in Blood: Beware of Deals with the Devil

So here’s an interesting one; a company who has spent the past year cutting back on employee vacation time asking its employees to donate some of what they have left to other, sick employees who no longer have any paid leave.  How very generous of them.  It seems to me that it would make for significantly better employee relations and morale if the company itself actually gave back some of the time it has taken for the ill, but I guess the point here is to continue to eat away at whatever vacation time all employees have left rather than any actual humanitarian purpose, or genuine desire to help.

This is par for the course in today’s media atmosphere.  Over the past few weeks, we’ve seen some rosy predictions spouted that the worst is behind us, things are starting to turn around, the bottom lines are looking brighter, etc.  It’s all complete bull.  We continue to see more and more layoffs (entirely confined to skill positions of writers, graphic designers, etc) and while the financial losses have slowed somewhat, they are still far outpacing any level with which cutbacks can keep up for long.  I’m still waiting for the headline that reads, “Major newspaper chain lays off 100 executives.”  I think I’ll be waiting a while for that one.

Which brings me to my point for today:  as skilled employees, what exactly are we holding on to with these jobs at this point?  It feels like we’re dying of consumption out here, losing a little more ground every day with no end in sight.  I know I’ve been waiting and waiting and waiting for good paying full time work to come along for over a year and a half now.  I think it’s time we come to grips with the reality that it’s likely not coming back.  Publishing, and print newspapers may indeed have a future, but our positions as content creators for these companies have accepted severe concessions to the point that any future work will almost definitely be of the independent contractor status, with significantly less money, no benefits and limited freedom to diversify our workloads.

Normally, I’m not opposed to independent contractor work; it allows a good bit of freedom of scheduling, and you can handle several jobs for different entities at the same time.  But the manner in which the atmosphere of communication is changing, with increasingly overlapping areas of competition, I expect that one of the banes of my personal existence will soon become more prevalent than it, unfortunately, already has; the non-compete agreement.

If there’s one area where we desperately need reform and regulation of the business community, it’s with regards to non-compete agreements.  These things are typically deals with the devil where an employee gets little or nothing and the employer gets total control of your working livelihood for periods of time far in excess of any just compensation.  I was once compelled into signing one of these evil little documents after a company I worked for was sold to a larger corporation.  Even though my job description and title didn’t change, the company forced all employees to sign on the dotted line not as a condition of continued employment, which would have been illegal under Maryland law, but in order to be “offered” employment by the new owner, a semantic difference worthy of the best attorney.  And when I inquired as to any compensation that would be given in lieu of my giving up my ability to work in my field for 12 months after leaving their employ, my question was met with the strictest, most blunt “no” I’ve ever heard.

Now, I will never again sign one of these accursed things, nor would I recommend anyone else ever sign one, either.  It’s just not worth it.  You might as well be selling your soul by signing a document made of human skin written in your own blood.  These things are that evil. Unless, and this is the key here, there is fair and just compensation involved.  By that, I mean compensation on par with your last year’s salary with the company, paid during the entire extent of which the non-compete is active.  Anything less should be illegal.  If a company doesn’t want me to work for a competitor, there’s a simple way to handle that; pay me.  Anything else is legitimized extortion.

Companies routinely use these vile and pernicious things as conditions for employment to new hires, justifying you giving up your right to work and freedom to use your skills however you wish by claiming that just their offer of employment is compensation enough.  That may seem to be the case before you have the job, but, trust me, when it’s time to move on, you will regret that signature more than anything you can imagine.  And in today’s atmosphere of layoffs and down-sizing, there’s a new fear, and a new diabolical use of these things.  Some let-go employees are having severance packages dangled over their heads, blackmailed into giving up a year or more of their working lives for what amounts to only a few weeks pay.  Even less when you consider that money is paid in a lump sum, which means the tax withdraw will be significantly higher than several smaller payments totaling the same amount.  This new practice is especially despicable as the company is preying on the employee’s uncertainty about the job market to accept whatever meager amount they offer today only to discover that the non-compete makes them even more unemployable in an already vice-tight job market.

Now, I typically am not a fan of government regulation, and it really comes down to the choices we want to make as individuals, but we must understand that by signing a non-compete, we are essentially promising to work for the company in question  for a year for free.  Without fair compensation, it’s a bad choice however you slice it, but if you want to make it, then it’s up to you.  My problem is the coercion involved.  To force someone to give up their rights when a company changes hands, or to blackmail them after a lay off is unconscionable, not to mention pretty questionable ethically, if not legally.

Which brings my point full circle.  What exactly are we, as skilled professionals holding on to here?  If your company is willing to treat people in this sort of disposable, self-serving manner, you can bet that you are at risk of more of the same whenever the mood strikes.  Where the higher ups often get non-competes that include fair compensation or better yet, large, contractually-obligated severance packages, the rank-and-file (you know, the folks that actually produce the products and generate the revenue that pays the bills) get the no-pay versions, all the while being told that they should be happy to give up their rights and career freedom for the opportunity to work there.

We’ve all got bills to pay, lord knows I have my share, but accepting work on these kinds of terms can quite literally trap you in a never-ending bad situation until you’re willing to eat a year of your life in career limbo pushing coffee at Starbucks, crossing off days on the calendar.  And signing one on your way out the door after being let-go is a very bad call.  You’re basically letting the company that just disposed of you off the hook, and face it, they wouldn’t be pushing for one if they didn’t believe you could hurt them somewhere else.  Most people  get career leverage for only so often in their lives, giving that up for anything less than a year’s salary can be a horrific mistake.  And worst of all, every time one of us signs one of these horrid things, it encourages the companies that use and abuse them to continue to push them every chance they get.

As the true creative driving force behind these companies, albeit completely disrespected and undervalued within its ranks, it’s up to us to stick together.  The future can either be made by large companies jamming us all into tight little corners completely under their thumbs, or we can make our own way.  I’m not suggesting we shun the work, just make sure its on terms you can live with.  And when those terms become so onerous to not just you, but the profession itself, we need to begin to question our allegences.  Individually, we have little control over anything but our own decisions.  But collectively, the entire publishing industry is dependent on the creative types to earn its money.  If we allow them to treat us as so much chattel, to be used, controlled and disposed of at will, we play their game, all the while they continue to collect the paychecks we make possible.

I read everyday about cutbacks being made here, and layoffs being instituted there, and it’s on our backs that the industry is trying to save itself.  The least we can do is maintain enough dignity and self-respect to not make it so easy for them.

Published in: on October 22, 2009 at 9:13 pm  Comments (2)  
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2 CommentsLeave a comment

  1. Dan,
    this is very troubling. Is Chesapeake Publishing demanding non-competes from what is so sadly left of its reduced staff? (OK, I know you may not want to be so direct out of self preservation concerns.) From what I have read over the years, only the most “name” columnists have been asked to sign such blatantly improper (and maybe illegal) non-compete contracts. But the big shots got a lot of money in return for such exclusivity.
    If a local publisher (but with international ownership) is demanding such contracts from employees doing day in, day out editorial services this is really outrageous. Please tell us what you can, without hurting yourself and your family. Prayers with you…

    • Louise,

      I purposefully didn’t name names because this is a pretty pervasive technique with regards to employees, both the before-hire and before-departure varieties. As yet, specific non-competes for strictly free-lance contributors hasn’t been much of an issue, outside of a typical understanding that writing for one publication precludes writing for its competitors. But that is a decision made largely by the writer and it only involves the time period of your arrangement, not after. Troublingly, I have seen a trend toward more one-sided agreements with contributors that grant a much wider range of rights of reuse and control to the publisher than the traditional one-time publication rights, particularly with the emergence of the internet, at the same time compensation for such work is shrinking.

      I think my main point is that, as potential contributors or employees of any publisher, we need to be more vigilant against the tools that control much more than just the work we do for someone today, particularly when it means we give up rights, either for the use of work or the right to work, for little or no compensation. I am not outright opposed to the use of contracts such as these, I am opposed to one-sided nature of them as they are used in practice. Basically, if a company wants exclusivity on someone’s skills, they need to pay up and pay fairly. Anything else is self-serving and an abuse of their position, and damaging not only someone’s ability to earn a living, but the profession itself, no matter who the publisher is.

      This industry doesn’t work without talented, skilled people in positions of creative control. That’s what we do best, and to degrade all of us to mere cogs to be plugged in and plugged out at will does damage to the very industry that earns all of us a living. Many publishers today like to say that its the economy that is the root problem of publishing’s ills. While it has unquestionably contributed, my belief is that the sudden loss of revenue has exposed some very long-standing cracks in the industry’s foundation that have only grown wider with the push to cut costs almost exclusively at the expense of the skilled, creative employees. I have heard it said many times (by salespeople and managers) that sales pay for the content. While that is true, in a very simplistic, naive way, a lack of quality, original content effectively puts a ceiling on what can be sold, no matter how good your salespeople are.

      Until this industry starts respecting creative talent again, not just abusing it on the cheap for their own ends, there will be no happy ending for print publishing.

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