Navigating the fine print of a layoff

Losing a job is not a pleasant experience, but stay in journalism long enough and there’s a pretty good chance it’ll happen to you. Maybe even more than once. 

My last layoff, from a news-adjacent tech startup, came via Google Hangouts. My access to everything was turned off at the beginning of the call and I had to dial in from my personal account to finish getting laid off. By this point, I had seen several colleagues laid off, the company’s lone human resources person leave and a new chief revenue officer come in. 

I was prepared, and it made a difference. 

Having been laid off from my first New York job at Digital First Media’s Project Thunderdome, I knew how risky startup life could be. I had insisted the leeway to freelance for noncompetitors during my employment at Project Thunderdome be written into my employment agreement there. That made it easier for me to rachet up my freelance efforts in the final days of my job and begin building my business. 

I also knew something else, that everything from severance to the length of company-provided COBRA benefits was negotiable — even if I was told otherwise.   

I’m not a lawyer, and this isn’t legal advice. But based on what I’ve experienced as a journalism survivor, this is what you should consider if and when you find yourself being shown the door.

This article originally appeared in an issue of The Cohort, Poynter’s newsletter for women kicking ass in digital media. Join the conversation here.

Don’t feel pressured to sign your severance paperwork

When you’re sitting in that conference room with HR, you may feel pressure to sign the severance agreement that’s just been put in front of you. After all, even the best HR people represent the company, not you.

“The HR people, they’re there to obstruct any kind of negotiation and prevent the employee from getting anything more than is on offer,” said James McCarney of New York-based McCarney Law PC, whose specialties include employment law. 

Legally, employees age 40 and over are entitled to at least 21 days to review the agreement, and another 7 days to revoke their agreement. Employees under 40 are entitled to a “reasonable” but undefined amount of time because they aren’t protected under federal age discrimination laws. It’s recommended employers provide people under 40 with at least five to seven days to protect themselves from future claims of duress or coercion.

If you’re not able to review your documents in that time, don’t be afraid to ask for an extension. It’s often in an employer’s best interest to grant the request. 

As you evaluate, it would be helpful to know if your employer has a pre-existing general policy on severance pay (such as a week of pay for every year worked). Ask for a copy and check to see if what’s being offered to you now meets or exceeds what’s provided in the policy.

Employers tend to position severance as a measure of gratitude for your years of service, but in reality it’s more meaningful than that. It can be a payment made in exchange for your right to file a civil suit against the company. To be effective in purchasing those rights, the payment or other benefits being offered has to exceed what you’re already entitled to receive under any existing company separation or severance policy.

Severance payments may also be accompanied by a reaffirmation of noncompete agreements you may have signed when starting the job. But you may not want to sign too quickly. 

Noncompete? Not so fast

Many media jobs nowadays come with noncompete agreements that prohibit employees working for direct competitors for a specified length of time, but these agreements have limitations. 

California, Montana, North Dakota and Oklahoma have all declared noncompete agreements unenforceable. Outside of these states, noncompetes can be hard to enforce for employees terminated without cause. That means in a layoff you may have the right to work for your previous employer’s competitors immediately, even if you’ve signed a noncompete. 

Often, companies will ask departing employees to reaffirm any noncompete agreements they signed when they joined. Depending on the language of the noncompete agreement you signed when joining the company, you may be able to use this as leverage to negotiate a better severance package, something I wish I’d have better understood when negotiating my last layoff because competitors quickly came calling.

Don’t forget your work

“I always try to remind photographers that if they are laid off, it’s important to ask their editors if they can use their work on their portfolio website,” said Alicia Calzada, the San Antonio-based Deputy General Counsel of the National Press Photographers Association. 

Because news organizations typically own the copyright to images and articles created during employment, asking for permission to use these in personal portfolios can avoid future headaches. 

The request can be made via email, but make sure to keep a copy on your personal computer or server. 

To learn more about copyright law and fair use for journalists, check out this Poynter course and this primer from the National Press Photographers Association.

What about hiring a lawyer?

Separation agreements can be hard to understand if you’re not a lawyer. Much of it can be legal boilerplate, sometimes cut and pasted into place with mistakes. 

A lawyer can help translate these documents for you, but that can cost a few hundred dollars or more (though some lawyers do offer free consultations). 

If you’re part of one of the many mass layoffs afflicting media these days, you may not be able to recoup legal fees through a better severance package. “For a low-level person in a mass layoff, it’s difficult to justify the economics of it,” McCarney said. “There’s less flexibility and more rigidity than there used to be.” 

But if you’re a senior-level employee, are let go before the payment of a contractually obligated bonus, have a potential legal claim against the company or just want to make sure you understand what you’re signing, hiring a lawyer can be well worth the cost. 

“You should go to a lawyer as soon as possible if you’re in an economic position to do that,” McCarney said. More than just peace of mind, it could get you more money and better terms, especially if you work for a risk-averse company. 

What if you think you were a victim of discrimination?

Consult a lawyer before you sign away your right to sue your employer. Once you sign a severance agreement, you’ll be prohibited from pursuing a civil lawsuit. 

A severance agreement doesn’t impact your legal right to file a complaint with the Equal Opportunity Employment Commission, though. The commission investigates complaints of discrimination based on things including race, national origin, religion, sex, age, disability and sexual orientation. But its effectiveness in protecting workers’ rights is questionable, and the process of seeing through a complaint can be lengthy, tedious and emotionally draining. 

Can I collect unemployment?

Whether you’re laid off or fired, you can collect unemployment in many cases. 

In New York, for example, you’ll have to wait until your severance runs out plus an additional week before you can claim benefits. After that, you’ll be able to collect up to $504 a week for up to 26 weeks. Of course, taxes and any freelancing you do will eat into this. 

State unemployment programs are often complicated and poorly articulated. Seeking help from someone in your state who has gone through the process can help you avoid headaches. 

Chances are, if you’re in journalism, you will know someone. 

It really is a new beginning

In media, layoffs, firings and restructuring are the norm. A job loss doesn’t have to be a career-ender and can sometimes be a crucial opportunity to pivot. 

Had it not been for a layoff, I might not have embraced full-time freelancing last year. Instead of seeing that layoff as an end to something, I used it to begin a new professional life mixing things I’m deeply passionate about: travel writing, digital strategy consulting and teaching. It’s an approach that’s given me not only professional and personal satisfaction but also kept me afloat financially and taken me from the interior of Alaska to southern Africa, Vietnam and many places in between. 

Meena Thiruvengadam is a freelance writer, audience development consultant and journalism trainer who has experienced her fair share of layoffs. She is a graduate of the Poynter-ONA Leadership Academy for Women in Digital Media and led teams at Bloomberg News and Business Insider. She got her start as a local newspaper reporter covering a night police beat in Texas.

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