News & Politics » Michael Miner on Media

When push comes to shove, should laid-off journalists sue?

Terminations of newspaper employees aren't what they used to be—just ask labor lawyer Sheribel Rothenberg.



When the Sun-Times decided to shrink its payroll in 1998 by firing Washington reporter Basil Talbott, former senator Paul Simon and future governor Rod Blagojevich both protested publicly, and Jesse Jackson called the editor of the paper. Jackson told me afterward, "I wanted for the record for him to consider the moral consequence, the precedent. Honor has to count. Morality has to count. Longevity has to count. And I think the broader community should realize that in some sense none of us are secure if the best years of our lives are thrown away with the mark of a pen."

I won't go so far as to say these sentiments softened the hearts of Sun-Times management; it was owned at the time by Conrad Black and David Radler, whose flair for squeezing every last dollar from their newspapers would eventually land both in prison. But when the newspaper negotiated a settlement with Talbott, its brass knew he had important friends. And not only was the Chicago Newspaper Guild in his corner but also attorney Sheribel Rothenberg. He gives most of the credit for how things went to her.

Did you clean up? I asked him the other day. "I can't say I cleaned up," Talbott replied jovially—journalism's ink-stained wretches never clean up. "But I was quite satisfied."

I've known Rothenberg since I came to Chicago—and actually longer than that. Two days before I interviewed at the Sun-Times in 1970, she hosted a small dinner party in her apartment in Marina City. Present were a young reporter from the Sun-Times (a friend who'd brought me along), a young reporter from the Daily News, and an even younger Sun-Times intern. The view was exhilarating, the hostess a force to be reckoned with. Just a few years out of law school, Rothenberg was standing the Chicago newspaper world on its ear. She'd joined the ACLU and volunteered for its women's rights committee, and she and an ACLU staff attorney were suing the dailies for segregating their want ads by sex.

You won? I asked the other day when she reminded me of this crusade.

"Oh no," she said. "We didn't win at the trial level. But we filed a notice of appeal, and suddenly they changed their policy."

She had gone up against the Tribune Company's formidable general counsel, Don Reuben. "He thought I was a twerp—what did I know?" Rothenberg remembered. "He could have been decent."

Rothenberg doesn't like to sue. When a suit is filed in an employment case a line is crossed—the two sides formally become adversaries. It's far better to act as collaborators, each trying to do right by a luckless former worker. The Talbott case was typical. There was no suit. Reasonable people sat down and came up with terms that everyone could live with, and everybody agreed to keep those terms a secret. (To its annoyance, even the Newspaper Guild was sometimes kept in the dark about the deals Rothenberg negotiated for its members.)

"One of the reasons, maybe, that I've often been successful in settling is that frequently the people who have been terminated—or think they're going to be terminated [and want to negotiate the terms]—are whistle-blowers or people who speak out. They are the ones rocking the boat, stirring things up a little bit.

"With journalists," Rothenberg continued, segueing from her employment law practice generally to her media piece of it, "it's sort of innate that they're stirring things up a little bit." Because this behavior's innate, management attorneys tend to take it for granted, Rothenberg claims. Then she lays out her case, and the other side discovers how compelling the evidence looks that her client was fired for being a pain in the ass.

But times have changed. Today, Jesse Jackson's appeal on behalf of Talbott sounds hopelessly naive. In this very different era in journalism, no one is secure, longevity counts for nothing, and corporate morality's first principle is survival.

The other day I told the tale of Jon Sall, who was hired by the Sun-Times as a photographer 24 years ago, kept up with changes in technology, and went on to create and manage an online video department for Sun-Times Media. When editor in chief Jim Kirk called him into his office in March, Sall was expecting a pat on the back for an in-house training session he'd just conducted. Instead, Kirk walked him to human resources. They were letting him go.

Sall did what Talbott had done 15 years earlier. He called Rothenberg. But she told me she's not sure she'll wind up representing him. The problem with the cases that jobless journalists bring her these days is they're too hard to win. "I can't do very many of them and make a living."

Newspapers staggered by falling circulation and vanishing advertising are putting the employees they got rid of to the test, she said. Do they really have the stomach to sue?

"Suing is nasty," Rothenberg said. "Some people just don't want to sue. They say, 'I want to move on in my life.' Other people say, 'Oh, I'll sue them!' But when they get down to it, they back away, or they sue and quickly get out."

First of all, it's expensive. "It's $300 to $400 just for filing fees," she said. "For depositions, the cost of each transcript is $500 to $1,500." How many depositions usually? "Half a dozen. And copying costs can end up being in the hundreds of dollars." She pointed out she hadn't even mentioned attorneys' fees.

"You have to realize you're investing real money. But worse than that, you're putting your whole career on the line.

"The worst thing [about suing] is how people feel. It makes them relive their past in a very unfavorable light. Lawyers are becoming much more aggressive and unsocial. It can feel brutal. It calls into question everything you ever did in your work life. I always tell people that it's very unpleasant. And it can last years. Eighteen months is fairly quick."

And even when Rothenberg thinks she has a case she might win—based on ageism, or sexism, or what have you—"no litigation [has chances] better than 50-50 in my view. All the judge has to do is not believe somebody's credibility, and you can lose."

Journalism in Chicago, she thinks, is going the way of Hollywood. "The stars do very well. The worker bees are totally expendable. It looks like the newspaper business, at least in Chicago, is saying to itself, 'We can get a lot of young people who want to do this cheap, so let's do it.' That you have sources and you know your way around the city—that doesn't count."

If the papers were a little more gracious when they send their people packing, she believes this would be not only decent but legally smart. For example, Rothenberg went on, the Sun-Times might have said to Sall: "We've made a business decision to let you go. You've done good work for us. We appreciate it. We're struggling financially. This is what we can do for you." (Not having been there, Rothenberg is taking Sall at his word that it went nothing like that.)

I asked labor lawyers at both the Sun-Times and Tribune to comment. Neither responded.

Joe Grimm, who spent years as a recruiter for the Detroit Free Press, said the problem with telling the person you're laying off why you're doing it is that "the reason never makes anybody feel any better." All you do is invite an argument. As in: "We're struggling financially." Then why does your CEO make $2 million a year? Or: Then pay me less money. I need to work.

There are horrible ways to lay someone off, said Grimm, who told me the story of the editor at a famous daily who was out of town so they sent him a fax. But there's no good way.

"I would be surprised if in this day and age you could win very many settlements for people losing newspaper jobs," said Grimm. Rothenberg, who agrees, said winning in court could rely on somehow getting your hands on blatant evidence, such as proof one boss said to another, "Let's slash our payroll. Let's get rid of the old-timers."

Search their e-mail, I suggested.

"And that's also very expensive," said Rothenberg.

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