BILL NUMBER: S521A

SPONSOR: YOUNG
 
TITLE OF BILL:  An act to amend the labor law, in relation to enacting
the "fair broadcast employment act of 2018"

 
PURPOSE OR GENERAL IDEA OF BILL:

To clarify the protections of persons employed in the broadcast indus-
try. To allow newly defined key employees and broadcast industry employ-
ers 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
"Fair Broadcast Employment Act of 2018."

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 10t 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 desig-
nation.

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 employee 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 employ-
ees." 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
con-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 coven-
ants not to compete would still remain subject to the standards applica-
ble under New York Common Law.

The impact of this minor change will be minimal. The overwhelming major-
ity 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 employ-
ers. 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 exclu-
sive 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.521 of 2017 Referred to Labor
S.6564 of 2016 Reported & Committed to Rules
S.1948 of 2015 Referred to Labor
S.6277 of 2012 Rules
S.3666 of 2013 Referred to Labor
S.3666 of 2014 Referred to Labor

 
EFFECTIVE DATE:
This act shall take effect immediately.