Enacts the "fair broadcast employment act of 2014" to authorize the use of certain contract provisions for the employment of key employees in the broadcast industry.
TITLE OF BILL: An act to amend the labor law, in relation to enacting the "fair broadcast employment act of 2014"
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 2014."
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.
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, A.8236 2012
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None to the State.
STATE OF NEW YORK ________________________________________________________________________ 3666--B 2013-2014 Regular Sessions IN SENATE February 8, 2013 ___________Introduced by Sen. LIBOUS -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- recommitted to the Committee on Labor in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the labor law, in relation to enacting the "fair broad- cast employment act of 2014" THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Short title. This act shall be known and may be cited as the "fair broadcast employment act of 2014". S 2. Section 202-k of the labor law, as added by chapter 398 of the laws of 2008, is amended to read as follows: S 202-k. Protection of persons employed in the broadcast industry. 1. For the purposes of this section: (a) "Broadcasting industry employer" includes INDIVIDUAL television stations or networks, INDIVIDUAL radio stations or networks, cable stations or networks, internet or satellite-based services similar to a broadcast station or network, any broadcast entities affiliated with any of the employers of this paragraph, or any other entity that provides broadcasting services such as news, weather, traffic, sports, or enter- tainment reports or programming. (b) "Broadcast employee" means any on-air employee or off-air employee of a broadcasting industry employer, excluding management employees. (C) "KEY BROADCAST EMPLOYEE" MEANS ANY BROADCAST EMPLOYEE, WHO AT THE TIME OF SIGNING AN EMPLOYMENT CONTRACT WITH A BROADCAST INDUSTRY EMPLOY- ER: (1) IS REASONABLY ANTICIPATED TO RECEIVE A TOTAL ANNUAL COMPENSATION PACKAGE OF TWO HUNDRED FIFTY THOUSAND DOLLARS OR MORE FROM A BROADCAST INDUSTRY EMPLOYER THAT IS LICENSED BY THE FEDERAL COMMUNICATIONS COMMIS-EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08201-04-4 S. 3666--B 2
SION IN A CITY HAVING A POPULATION OF ONE MILLION OR MORE OR IS AN ENTI- TY WITH ITS PRINCIPAL PLACE OF BUSINESS LOCATED IN SUCH A CITY; OR (2) IS REASONABLY ANTICIPATED TO RECEIVE A TOTAL ANNUAL COMPENSATION PACKAGE OF ONE HUNDRED THOUSAND DOLLARS OR MORE FROM A BROADCAST INDUS- TRY EMPLOYER THAT IS LICENSED BY THE FEDERAL COMMUNICATIONS COMMISSION IN A CITY HAVING A POPULATION OF LESS THAN ONE MILLION OR IS AN ENTITY WITH ITS PRINCIPAL PLACE OF BUSINESS LOCATED IN SUCH A CITY. 2.
[A]SUBJECT TO THE PROVISIONS OF SUBDIVISION THREE OF THIS SECTION, A broadcasting industry employer shall not require as a condition of employment, whether in an employment contract or otherwise, that a broadcast employee or prospective broadcast employee refrain from obtaining employment: (a) in any specified geographic area; (b) for a specific period of time; or (c) with any particular employer or in any particular industry; after the conclusion of employment with such broadcasting industry employer. This section shall not apply to preventing the enforcement of such a covenant during the term of an employment contract. 3. THE RESTRICTIONS IN THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION SHALL NOT APPLY TO EMPLOYEES WHOSE SERVICES PRIMARILY INCLUDE SALES OR MANAGEMENT FUNCTIONS, OR WHO ARE KEY EMPLOYEES. 4. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT THE ENFORCEMENT BY A BROADCASTING INDUSTRY EMPLOYER OF A POST-CONTRACT (A) RIGHT OF FIRST REFUSAL/RIGHT TO MATCH PROVISION, (B) EXCLUSIVE NEGOTIATION PROVISION, OR (C) CONFIDENTIALITY/NON-DISCLOSURE PROVISION IN ANY EMPLOYMENT CONTRACT. 5. Any person who violates this section shall be civilly liable to a broadcast employee for damages, attorney's fees and costs. S 3. This act shall take effect immediately.