Hold on to your editors, Racked is in expansion mode. Yes, a poaching war is underway amongst the fashion blogs, and Racked, the popular retail-centric site, is right in the middle of it. The editorial shake-ups appear to have come to a bit of head recently. Last week, Fashionista’s longtime beauty editor, Cheryl Wischhover, announcing her departure after joining 6 years prior by way of an article on the site and then an hour or so later, taking to her Twitter account to announce her new role at Racked. And as of Tuesday, Fashionista's senior editor, Eliza Brooke, who has spent over two years with the site, announced that she is headed to Racked, where she will serve as a senior reporter.
Editorial shifts have been underway for over a year now (and to be fair, it seems that shifts at these online-only publications are somewhat frequent). In November 2015, we learned that Lauren Indvik, Fashionista’s editor-in-chief, was slated to become its editor-at-large; and Senior Editors Dhani Mau and Alyssa Vingan Klein were named co-editorial directors. A few months before that, Tyler McCall, who served as the site’s senior associate editor and social media guru, landed at the newly-launched Vogue Runway and has since settled in as Teen Vogue's Digital Fashion Editor.
Racked, however, has undergone more drastic changes over the past year or so. In short: the site, which was launched in the mid-2000’s by Lockhart Steele and sold to New York-based Vox Media in 2013, has been poaching up a storm. In January, Racked poached Yahoo Style’s managing editor Britt Aboutaleb. She replaced former editor-in-Chief Leslie Price, who left the site late last year. According to Vox vice president and editorial director Lockhart Steele, Aboutaleb’s hire is about “taking Racked to the next level.” In the spirit of taking the site to the next level, Racked welcomed Meredith Haggerty as its new reports editor, and Rajni Jacques, its first fashion editor at large, in May and July 2015, respectively.
IS THIS LEGAL?
In a world of non-compete clauses and lawsuits stemming from purported non-compete clause violations, you may be asking: How is Racked’s recent poaching-spree legal? Well, non-compete agreements likely do not apply in the fashion blogosphere and when they do, they're very short in terms of duration (think: a few months at best). Before we go on, a non-compete clause or non-compete agreement (also known as a "covenant not to compete") is a contract provision in which an employee promises (and is thereafter legally bound) not to work for a direct competitor for a specified period of time after he/she leaves the company. These agreements serve a number of purposes. They are a way of (potentially) retaining top talent; people are valuable capital after all. They also serve as a mechanism for protecting confidential company information and intellectual property.
You may recall the strongly-worded lawsuit that Nike filed in 2014 against three upper-level employees, who left to join adidas, allegedly in violation of the non-compete agreements they signed. According to Nike, Marc Dolce, Denis Dekovic and Mark Miner, all of whom were director-level designers with Nike, signed agreements that they would not join a rival company for a period of year after leaving, which is generally the court-accepted time period for a non-compete clause. This suggests an important point about non-compete clauses: Traditionally, they have tended to apply only to upper-level employees of a company, who are privy to highly confidential information about a company, such as its financial figures, its various product designs, its marketing strategies, its vendors, etc. This is the type of information that companies want to protect, and it is high-level employees that are usually the most well-versed in it. Hence, the frequency with which they sign non-compete agreements.
Moreover, as we learned from the case that Louis Vuitton filed against its former executive, Joon Ma, who jumped ship to Coach allegedly in violation of her non-compete agreement with the luxury brand in 2014, the definition of “competitor” is construed quite widely. It might seem like a bit of a stretch to call Coach a competitor of Louis Vuitton, based on price and level of exclusivity, alone, but the two were deemed to be rivals for the purposes of that case, which ultimately settled.
This all sounds great, right? A way to dissuade your employees from quitting and from freelancing for other publications, and to protect valuable information. So, why aren’t these online fashion publications utilizing formal non-compete agreements to protect themselves and hold on to their editors? (And considering that the editors at issue, the ones going from Fashionista to Racked, are commencing work at the latter within a few days of announcing their departures, it seems obvious that there not any non-compete restraints at issue. This is not to say, however, that all internet-only publications operate in this same way).
Well, there is any number of reasons, one of them being that the salaries that are being paid to editors just are not high enough (we are not talking about the creative directors of luxury fashion houses, after all, who have very real, iron clad non-compete clauses in their contracts and salaries to reflect such contract terms). If a company is going to require an employee to sign away the right to work somewhere else for a year after they leave, the company has to offer something in exchange. Many times, that is payment during the duration of the non-compete period or a high enough salary to make it worth the employee’s while. These online publications simply are not doing that.
Second: Chances are, these websites (most of which have only been founded in the past 10 years or less) don’t have in-house legal counsel to suggest that editors sign non-compete agreements. And more importantly, they don’t have in-house legal counsel to draft said non-compete agreements so that the agreements will actually be enforceable in court. The latter can be quite a feat, as it is easily argued that non-compete agreements restrain trade, and thus, many states attempt to limit use of them. New York is no exception. New York courts don’t typically like non-compete clauses, but they will be enforced if they are found to be reasonable and necessary to protect an employer’s interests.
Factors that are typically considered to determine whether or not a non-compete agreement is reasonable include: the agreement is no greater than required to protect an employer’s legitimate protectable interests; the agreement does not impose undue hardship on the employee or cause injury to the public; and the agreement is reasonable in duration and geographic scope.
So, this is not the type of clause that can be thrown together in a boiler-plate manner and excepted to hold up in court. In order to have a “reasonable” non-complete clause (“reasonable” is the legal standard required), the company must take a number of employee-specific things into account in addition to the factors listed above, such as just how much confidential information the employee was privy to; the lifespan of that confidential information; etc. This is all to say, it really is not as simple as throwing a clause into a contract that says, “Employee agrees not to work for a competing publication for a year after his/her departure.”
Still yet, there is the very real possibility that editors confronted with the possibility of signing a non-compete simply say no. Take Bustle’s founder, Bryan Goldberg, for instance. When asked a few years ago about such clauses in connection with his own site, he noted: “I have never signed any agreement with such a stipulation, nor would I have signed one.”
IT’S JUST NOT HOW THE FASHION PRESS WORKS
Given the relatively low level of expected loyalty to any given website for any given length of time (given the seemingly widespread understanding of how mobility works for fashion writers), the name of the game seems to come by way of poaching and site jumping. With many of these editors starting as interns at one publication or another, a career in the fashion press relies on steady upward progression. While Fashionista’s Mau and Vingan seem to be exceptions, as they began at Fashionista as interns and subsequently rose to the positions of co-editorial directors, promotions largely appear to come with a change in venue.
Signing a non-compete would largely prohibit such upward mobility, and it seems that editors and aspiring editors know this quite well. So, poach away my friends, the industry depends on it and it appears that you are very much in the (legal) clear.
UPDATE (3/30/16): Per WWD, Fashionista has made its first hire since it brought sales and marketing efforts in-house three years ago. "Julia Stedman joins the company as general manager and associate publisher of Fashionista from Condé Nast, where she served as vogue.com’s senior director of advertising planning and strategy." But that's not all: "Tyler McCall returns to Fashionista from Teen Vogue where she worked as a digital fashion editor." She will fill a senior editor.