BILL NUMBER:S1948

TITLE OF BILL:

An act to amend the labor law, in relation to enacting the "fair
broadcast employment act of 2015"

PURPOSE OR GENERAL IDEA OF BILL:

To clarify the protections of persons employed in the broadcast
industry. To allow newly defined key employees and broadcast industry
employers to negotiate pursuant to terms long recognized under New
York common law.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1: provides that this act shall be known and may be cited as
the "Pair Broadcast Employment Act of 2015."

Section 2(a) clarifies the definitions in the current section 202(k)
(1) (a) making it clear that each individual broadcast station and
network entity falls within the scope of the legislation.

Section 2(b) No change for existing law

Section 2(c) amends section 202(k) by creating a new category of "key"
              

employees that will be allowed to negotiate with broadcast industry
employers for post contract term covenants not to compete. Under this
provision, a "key employee" is defined as either:(1) compensated in
the highest 10% of all non management employees employed by the
broadcast industry employer in New York, or (2) is one of five (5)
designated key non-management positions employed by the broadcast
industry employer in New York, provided the employer has notified the
employee of that designation.

Section 2. (A) amends current section 202(k) by exempting key
employees from the limitations contained in the provision

Section 3: amends section 3 by clarifying that the provisions of that
section do not apply to non-managerial key employees, as defined in
section 2(c) of a broadcast industry employer.

Section 4: adds a new provision clarifying Section 202(k) to make it
clear that the section does not limit in any way provisions relating
to post-contract: (a) right of first refusal or right to match, (b)
periods for exclusive negotiations, or (c)
confidentiality/non-disclosure provisions in any employment contract.

Section 5: Existing section 202(k) (5) is retained. The existing
enforcement provisions, indicating that violators may be civilly
liable to a broadcast employees for damages, attorney's fees and
costs, remain the same.

JUSTIFICATION:

Under current Section 202(k), all employees and broadcast industry
employers may negotiate for covenants not to compete during the term


of the employment contract as part of the underlying employment
contract. Such provisions remain subject to the "reasonableness"
requirements as determined by New York Common Law. This freedom is not
extended to post contract term covenants not to compete, which are
prohibited where they are part of the underlying employment agreement.

The proposed bill creates a limited exception to the prohibition on
post contract term covenants not to compete for "key non-management
employees." Under the legislation, these key employees and employers
would be able to negotiate a post contract covenant not to compete as
part of the underlying employment contract. Key non-management
employees are defined as 1) non-management employees compensated in
the highest 10% of all non-management employees employed by the
broadcast industry employer in New York, or (2) one of five (5)
designated-key non-management positions employed by the broadcast
industry employer in New York, provided the employer has notified the
employee of that designation. This limited class of employees would be
free to negotiate such provisions with a broadcast industry employer.
Importantly, the post contract term covenants not to compete would
still remain subject to the standards applicable under New York Common
Law.

The impact of this minor change will be minimal. The overwhelming
majority of broadcast industry employees, i.e., 90%, would remain
subject to the existing limitations of Section 202(k). The legislation
is designed to affect only those "key" non-management employees who
generally are in a position to negotiate with their respective
broadcast industry employers. Moreover, post contract term covenants
not to compete remain subject to the standards of New York common law.
These standards govern nearly all employment contracts in the state of
New York. The current law, Section 202(k), was enacted in 2008. It is
an exception from the common law governing labor contracts, and
uniquely singles out broadcast industry employers and employees. No
other industry or profession is subject to such a unique limitation.

The proposed bill also clarifies existing law with respect to several
provisions that are common in current employment contracts including:
(1) the right of first refusal or right to match, (2) periods for
exclusive negotiations, or (3) confidentiality/nondisclosure
provisions in any employment contract. The bill simply clarifies that
Section 202(k) never intended to limit the use of these provisions.

PRIOR LEGISLATIVE HISTORY:

S.6277 of 2012 Rules
S.3666 of 2013 Referred to Labor
S.3666 of 2014 Referred to Labor

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None to the State.

EFFECTIVE DATE:

Immediately.