S T A T E   O F   N E W   Y O R K
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                                 8236--A

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              June 8, 2011
                               ___________

Introduced by M. of A. WRIGHT -- read once and referred to the Committee
  on  Labor  -- 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  broadcast
  employees'  freedom  to  work act; and to repeal certain provisions of
  such law relating thereto

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. This act shall be known and may be cited as the "broadcast
employees' freedom to work act".
  S 2.  Section 202-k of the labor law is REPEALED  and  a  new  section
202-k is added to read as follows:
  S  202-K. PROTECTION OF PERSONS EMPLOYED IN THE BROADCAST INDUSTRY. 1.
DEFINITIONS. FOR THE PURPOSES OF THIS SECTION:
  (A) "BROADCASTING INDUSTRY EMPLOYER" INCLUDES (I) TELEVISION  STATIONS
OR  NETWORKS, RADIO STATIONS OR NETWORKS, OR CABLE STATIONS OR NETWORKS,
(II) INTERNET OR SATELLITE-BASED SERVICES SIMILAR TO A BROADCAST STATION
OR NETWORK AND THAT PROVIDE COVERED BROADCASTING SERVICES, AND (III) ANY
OTHER ENTITY THAT PROVIDES COVERED BROADCASTING SERVICES.
  (B) "COVERED BROADCASTING SERVICES" SHALL MEAN THE PROVISION OF BROAD-
CASTING SERVICES SUCH AS  NEWS,  WEATHER,  TRAFFIC,  SPORTS,  OR  ENTER-
TAINMENT  REPORTS,  OR OTHER FORMS OF CONTENT PROGRAMMING; PROVIDED THAT
FOR PURPOSES OF THIS SECTION, AN ENTITY SHALL  NOT  BE  PRESUMED  TO  BE
ACTIVELY  ENGAGED  IN  THE  PROVISION  OF  COVERED BROADCASTING SERVICES
UNLESS AT LEAST THIRTY PERCENT OF ITS ASSETS OR EMPLOYEES ARE  DEDICATED
PRIMARILY TO THE PROVISION OF SUCH SERVICES.
  (C)  "BROADCAST  EMPLOYEE"  SHALL MEAN (I) ANY ON-AIR EMPLOYEE OR (II)
OFF-AIR EMPLOYEE OF A BROADCASTING INDUSTRY  EMPLOYER  PROVIDING  DIRECT
SUPPORT  OR SERVICES TO ANY ON-AIR EMPLOYEE, PROVIDED, THAT SUCH SUPPORT
OR SERVICE RELATES TO THE CONTENT OF A BROADCAST,  EXCLUDING  MANAGEMENT
EMPLOYEES AND SALES REPRESENTATIVES.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01109-03-2
              

A. 8236--A                          2

  (D)  "MANAGEMENT  EMPLOYEE"  SHALL  MEAN AN EMPLOYEE (I) WHOSE PRIMARY
DUTY CONSISTS OF THE MANAGEMENT OF THE ENTERPRISE IN WHICH SUCH INDIVID-
UAL IS EMPLOYED OR OF A CUSTOMARILY RECOGNIZED DEPARTMENT OR SUBDIVISION
THEREOF; (II) WHO CUSTOMARILY AND REGULARLY DIRECTS THE WORK OF  TWO  OR
MORE  OTHER  EMPLOYEES  THEREIN; (III) WHO HAS AUTHORITY TO HIRE OR FIRE
OTHER EMPLOYEES OR MAKE SUGGESTIONS AND RECOMMENDATIONS AS TO HIRING  OR
FIRING  AND  AS  TO THE ADVANCEMENT AND PROMOTION OR ANY OTHER CHANGE OF
STATUS OF EMPLOYEES; AND (IV) WHO CUSTOMARILY  AND  REGULARLY  EXERCISES
DISCRETIONARY POWERS.
  (E) "REQUIRE AS A CONDITION OF EMPLOYMENT" SHALL MEAN TO IMPOSE ON ANY
BROADCAST  EMPLOYEE  A  COVENANT  NOT TO COMPETE AS AN EXPRESS MANDATORY
OBLIGATION IN CONNECTION WITH (I) AN OFFER  OF  EMPLOYMENT  OR  PROPOSED
CONTRACT  FOR  EMPLOYMENT  OR REEMPLOYMENT OR (II) CONTINUED EMPLOYMENT;
PROVIDED THAT THE GRANT OF ANY AWARD OR BENEFIT THE FORFEITURE OF  WHICH
MAY  RESULT  FROM  A  BREACH  OF  A COVENANT NOT TO COMPETE SHALL NOT BE
DEEMED TO IMPOSE ON ANY BROADCAST EMPLOYEE A COVENANT NOT TO COMPETE.
  (F) "COVENANT NOT TO COMPETE" SHALL MEAN ANY CONDITION  OF  EMPLOYMENT
FALLING WITHIN THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION.
  2.  NONCOMPETITION. 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;
IN EACH CASE, 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. EXCLUSIONS. THIS SECTION SHALL NOT PREVENT:
  (A)  THE  ENFORCEMENT  BY  A  BROADCASTING INDUSTRY EMPLOYER OF SUCH A
COVENANT NOT TO COMPETE DURING THE REMAINING TERM OF EMPLOYMENT  AS  SET
FORTH  IN  AN  EMPLOYMENT  AGREEMENT  BETWEEN A BROADCAST EMPLOYEE AND A
BROADCASTING INDUSTRY EMPLOYER, IN THE EVENT THAT THE EMPLOYMENT OF  THE
BROADCAST EMPLOYEE IS TERMINATED FOR ANY REASON;
  (B)  THE ENFORCEMENT BY A BROADCASTING INDUSTRY EMPLOYER OF A COVENANT
NOT TO COMPETE, NOT REQUIRED AS A CONDITION OF EMPLOYMENT, BUT AGREED TO
BY A BROADCAST EMPLOYEE  IN  EXCHANGE  FOR  ADDITIONAL  AND  INDEPENDENT
CONSIDERATION  SUCH  AS  (I) SEVERANCE, INCLUDING BUT NOT LIMITED TO ANY
SEVERANCE DUE UNDER AN APPLICABLE COLLECTIVE  BARGAINING  AGREEMENT,  OR
(II) ANY OTHER POST-TERMINATION BENEFIT OR ARRANGEMENT.
  (C)  THE  ENFORCEMENT BY A BROADCASTING INDUSTRY EMPLOYER OF AN EXCLU-
SIVE GOOD-FAITH NEGOTIATION PROVISION UNDER WHICH, DURING  THE  TERM  OF
EMPLOYMENT  AND  FOR  A  REASONABLE PERIOD THEREAFTER (NOT TO EXCEED ONE
HUNDRED EIGHTY DAYS FROM  THE  TERMINATION  OF  A  BROADCAST  EMPLOYEE'S
EMPLOYMENT AGREEMENT OR ARRANGEMENT), SUCH BROADCAST EMPLOYEE HAS AGREED
TO  NEGOTIATE  EXCLUSIVELY AND IN GOOD FAITH WITH HIS OR HER EMPLOYER OR
FORMER EMPLOYER (AS THE CASE MAY BE) BEFORE ENTERING  INTO  NEGOTIATIONS
WITH, OR ACCEPTING EMPLOYMENT WITH, ANY OTHER PARTY;
  (D)  THE ENFORCEMENT BY A BROADCASTING INDUSTRY EMPLOYER OF A RIGHT OF
FIRST REFUSAL UNDER WHICH, FOR A REASONABLE PERIOD  THEREAFTER  (NOT  TO
EXCEED  ONE  HUNDRED  EIGHTY  DAYS  FROM  THE TERMINATION OF A BROADCAST
EMPLOYEE'S EMPLOYMENT AGREEMENT OR ARRANGEMENT), SUCH BROADCAST EMPLOYEE
HAS AGREED TO (I) PROVIDE HIS OR HER FORMER EMPLOYER WITH NOTICE OF  THE
MATERIAL TERMS OF ANY OTHER OFFER OF EMPLOYMENT; (II) PROVIDE HIS OR HER

A. 8236--A                          3

FORMER  EMPLOYER  WITH  A  RIGHT TO MATCH THAT OFFER; AND (III) ACCEPT A
MATCHING OFFER MADE BY THE FORMER EMPLOYER;
  (E)  THE  ENFORCEMENT  BY  A  BROADCASTING  INDUSTRY  EMPLOYER  OR ANY
POST-CONTRACTUAL RESTRICTION FOR A BROADCAST EMPLOYEE EARNING MORE  THAN
ONE HUNDRED THOUSAND DOLLARS ANNUALLY; OR
  (F)  THE  ENFORCEMENT  BY  A  BROADCASTING  INDUSTRY  EMPLOYER  OF ANY
POST-CONTRACTUAL CONFIDENTIALITY  OR  NON-DISCLOSURE  PROVISION  IN  THE
BROADCAST EMPLOYEE'S CONTRACT.
  4.  DAMAGES.    ANY  PERSON WHO VIOLATES THIS SECTION SHALL BE CIVILLY
LIABLE TO A BROADCAST EMPLOYEE FOR DIRECT AND ACTUAL DAMAGES  ONLY  (AND
NOT  CONSEQUENTIAL  OR PUNITIVE DAMAGES), AS WELL AS ATTORNEY'S FEES AND
COSTS.
  S 3. Waiver. The protections provided by section 202-k  of  the  labor
law,  as  added  by  section two of this act, may not be waived, and any
clause, covenant or agreement to waive such prohibition  shall  be  null
and  void  and  may  not be enforced against the parties in any court or
other jurisdiction.
  S 4. This  act  shall  take  effect  immediately;  provided  that  the
provisions of this act are retroactive and shall apply only to contracts
entered  into, renewed, or extended on or after August 5, 2008; provided
further that the provisions of this  section  shall  not  apply  to  any
broadcasting industry employer seeking to enforce a written covenant not
to  compete  that was in effect prior to August 5, 2008 and that has not
otherwise been renewed or extended after such date, regardless of wheth-
er the termination of employment of a broadcast employee occurs prior to
or after the effective date of this act.