senate Bill S3666A

Amended

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

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 08 / Feb / 2013
    • REFERRED TO LABOR
  • 08 / Jan / 2014
    • REFERRED TO LABOR
  • 07 / Apr / 2014
    • AMEND (T) AND RECOMMIT TO LABOR
  • 07 / Apr / 2014
    • PRINT NUMBER 3666A
  • 03 / Jun / 2014
    • AMEND AND RECOMMIT TO LABOR
  • 03 / Jun / 2014
    • PRINT NUMBER 3666B

Summary

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.

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Bill Details

See Assembly Version of this Bill:
A6671A
Versions:
S3666
S3666A
S3666B
Legislative Cycle:
2013-2014
Current Committee:
Senate Labor
Law Section:
Labor Law
Laws Affected:
Amd ยง202-k, Lab L

Sponsor Memo

BILL NUMBER:S3666A

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.

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, A.8236 2012

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None to the State.

EFFECTIVE DATE:

Immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3666--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            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

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 ON-AIR OR OFF-AIR NON-MANAGE-
MENT EMPLOYEE OF A BROADCASTING INDUSTRY EMPLOYER, WHO  IS  EITHER:  (1)
COMPENSATED  IN  THE HIGHEST TEN PERCENT OF ALL NON-MANAGEMENT EMPLOYEES
EMPLOYED BY THE BROADCAST INDUSTRY EMPLOYER IN THIS STATE, OR (2) IS ONE
OF FIVE DESIGNATED KEY NON-MANAGEMENT POSITIONS EMPLOYED BY  THE  BROAD-
CAST INDUSTRY EMPLOYER IN THIS STATE, PROVIDED THE EMPLOYER HAS NOTIFIED
THE EMPLOYEE OF SUCH DESIGNATION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08201-02-4

S. 3666--A                          2

  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 MANAGEMENT EMPLOYEES OR KEY BROADCAST EMPLOY-
EES, AS SO DESIGNATED BY BROADCASTING INDUSTRY EMPLOYERS.
  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.

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