S T A T E O F N E W Y O R K
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4954
2013-2014 Regular Sessions
I N A S S E M B L Y
February 13, 2013
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Introduced by M. of A. WRIGHT -- read once and referred to the Committee
on Labor
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:
1 Section 1. This act shall be known and may be cited as the "broadcast
2 employees' freedom to work act".
3 S 2. Section 202-k of the labor law is REPEALED and a new section
4 202-k is added to read as follows:
5 S 202-K. PROTECTION OF PERSONS EMPLOYED IN THE BROADCAST INDUSTRY. 1.
6 DEFINITIONS. FOR THE PURPOSES OF THIS SECTION:
7 (A) "BROADCASTING INDUSTRY EMPLOYER" INCLUDES (I) TELEVISION STATIONS
8 OR NETWORKS, RADIO STATIONS OR NETWORKS, OR CABLE STATIONS OR NETWORKS,
9 (II) INTERNET OR SATELLITE-BASED SERVICES SIMILAR TO A BROADCAST STATION
10 OR NETWORK AND THAT PROVIDE COVERED BROADCASTING SERVICES, AND (III) ANY
11 OTHER ENTITY THAT PROVIDES COVERED BROADCASTING SERVICES.
12 (B) "COVERED BROADCASTING SERVICES" SHALL MEAN THE PROVISION OF BROAD-
13 CASTING SERVICES SUCH AS NEWS, WEATHER, TRAFFIC, SPORTS, OR ENTER-
14 TAINMENT REPORTS, OR OTHER FORMS OF CONTENT PROGRAMMING; PROVIDED THAT
15 FOR PURPOSES OF THIS SECTION, AN ENTITY SHALL NOT BE PRESUMED TO BE
16 ACTIVELY ENGAGED IN THE PROVISION OF COVERED BROADCASTING SERVICES
17 UNLESS AT LEAST THIRTY PERCENT OF ITS ASSETS OR EMPLOYEES ARE DEDICATED
18 PRIMARILY TO THE PROVISION OF SUCH SERVICES.
19 (C) "BROADCAST EMPLOYEE" SHALL MEAN (I) ANY ON-AIR EMPLOYEE OR (II)
20 OFF-AIR EMPLOYEE OF A BROADCASTING INDUSTRY EMPLOYER PROVIDING DIRECT
21 SUPPORT OR SERVICES TO ANY ON-AIR EMPLOYEE, PROVIDED, THAT SUCH SUPPORT
22 OR SERVICE RELATES TO THE CONTENT OF A BROADCAST, EXCLUDING MANAGEMENT
23 EMPLOYEES AND SALES REPRESENTATIVES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08791-01-3
A. 4954 2
1 (D) "MANAGEMENT EMPLOYEE" SHALL MEAN AN EMPLOYEE (I) WHOSE PRIMARY
2 DUTY CONSISTS OF THE MANAGEMENT OF THE ENTERPRISE IN WHICH SUCH INDIVID-
3 UAL IS EMPLOYED OR OF A CUSTOMARILY RECOGNIZED DEPARTMENT OR SUBDIVISION
4 THEREOF; (II) WHO CUSTOMARILY AND REGULARLY DIRECTS THE WORK OF TWO OR
5 MORE OTHER EMPLOYEES THEREIN; (III) WHO HAS AUTHORITY TO HIRE OR FIRE
6 OTHER EMPLOYEES OR MAKE SUGGESTIONS AND RECOMMENDATIONS AS TO HIRING OR
7 FIRING AND AS TO THE ADVANCEMENT AND PROMOTION OR ANY OTHER CHANGE OF
8 STATUS OF EMPLOYEES; AND (IV) WHO CUSTOMARILY AND REGULARLY EXERCISES
9 DISCRETIONARY POWERS.
10 (E) "REQUIRE AS A CONDITION OF EMPLOYMENT" SHALL MEAN TO IMPOSE ON ANY
11 BROADCAST EMPLOYEE A COVENANT NOT TO COMPETE AS AN EXPRESS MANDATORY
12 OBLIGATION IN CONNECTION WITH (I) AN OFFER OF EMPLOYMENT OR PROPOSED
13 CONTRACT FOR EMPLOYMENT OR REEMPLOYMENT OR (II) CONTINUED EMPLOYMENT;
14 PROVIDED THAT THE GRANT OF ANY AWARD OR BENEFIT THE FORFEITURE OF WHICH
15 MAY RESULT FROM A BREACH OF A COVENANT NOT TO COMPETE SHALL NOT BE
16 DEEMED TO IMPOSE ON ANY BROADCAST EMPLOYEE A COVENANT NOT TO COMPETE.
17 (F) "COVENANT NOT TO COMPETE" SHALL MEAN ANY CONDITION OF EMPLOYMENT
18 FALLING WITHIN THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION.
19 2. NONCOMPETITION. A BROADCASTING INDUSTRY EMPLOYER SHALL NOT REQUIRE
20 AS A CONDITION OF EMPLOYMENT, WHETHER IN AN EMPLOYMENT CONTRACT OR
21 OTHERWISE, THAT A BROADCAST EMPLOYEE OR PROSPECTIVE BROADCAST EMPLOYEE
22 REFRAIN FROM OBTAINING EMPLOYMENT:
23 (A) IN ANY SPECIFIED GEOGRAPHIC AREA;
24 (B) FOR A SPECIFIC PERIOD OF TIME; OR
25 (C) WITH ANY PARTICULAR EMPLOYER OR IN ANY PARTICULAR INDUSTRY;
26 IN EACH CASE, AFTER THE CONCLUSION OF EMPLOYMENT WITH SUCH BROADCASTING
27 INDUSTRY EMPLOYER. THIS SECTION SHALL NOT APPLY TO PREVENTING THE
28 ENFORCEMENT OF SUCH A COVENANT DURING THE TERM OF AN EMPLOYMENT
29 CONTRACT.
30 3. EXCLUSIONS. THIS SECTION SHALL NOT PREVENT:
31 (A) THE ENFORCEMENT BY A BROADCASTING INDUSTRY EMPLOYER OF SUCH A
32 COVENANT NOT TO COMPETE DURING THE REMAINING TERM OF EMPLOYMENT AS SET
33 FORTH IN AN EMPLOYMENT AGREEMENT BETWEEN A BROADCAST EMPLOYEE AND A
34 BROADCASTING INDUSTRY EMPLOYER, IN THE EVENT THAT THE EMPLOYMENT OF THE
35 BROADCAST EMPLOYEE IS TERMINATED FOR ANY REASON;
36 (B) THE ENFORCEMENT BY A BROADCASTING INDUSTRY EMPLOYER OF A COVENANT
37 NOT TO COMPETE, NOT REQUIRED AS A CONDITION OF EMPLOYMENT, BUT AGREED TO
38 BY A BROADCAST EMPLOYEE IN EXCHANGE FOR ADDITIONAL AND INDEPENDENT
39 CONSIDERATION SUCH AS (I) SEVERANCE, INCLUDING BUT NOT LIMITED TO ANY
40 SEVERANCE DUE UNDER AN APPLICABLE COLLECTIVE BARGAINING AGREEMENT, OR
41 (II) ANY OTHER POST-TERMINATION BENEFIT OR ARRANGEMENT.
42 (C) THE ENFORCEMENT BY A BROADCASTING INDUSTRY EMPLOYER OF AN EXCLU-
43 SIVE GOOD-FAITH NEGOTIATION PROVISION UNDER WHICH, DURING THE TERM OF
44 EMPLOYMENT AND FOR A REASONABLE PERIOD THEREAFTER (NOT TO EXCEED ONE
45 HUNDRED EIGHTY DAYS FROM THE TERMINATION OF A BROADCAST EMPLOYEE'S
46 EMPLOYMENT AGREEMENT OR ARRANGEMENT), SUCH BROADCAST EMPLOYEE HAS AGREED
47 TO NEGOTIATE EXCLUSIVELY AND IN GOOD FAITH WITH HIS OR HER EMPLOYER OR
48 FORMER EMPLOYER (AS THE CASE MAY BE) BEFORE ENTERING INTO NEGOTIATIONS
49 WITH, OR ACCEPTING EMPLOYMENT WITH, ANY OTHER PARTY;
50 (D) THE ENFORCEMENT BY A BROADCASTING INDUSTRY EMPLOYER OF A RIGHT OF
51 FIRST REFUSAL UNDER WHICH, FOR A REASONABLE PERIOD THEREAFTER (NOT TO
52 EXCEED ONE HUNDRED EIGHTY DAYS FROM THE TERMINATION OF A BROADCAST
53 EMPLOYEE'S EMPLOYMENT AGREEMENT OR ARRANGEMENT), SUCH BROADCAST EMPLOYEE
54 HAS AGREED TO (I) PROVIDE HIS OR HER FORMER EMPLOYER WITH NOTICE OF THE
55 MATERIAL TERMS OF ANY OTHER OFFER OF EMPLOYMENT; (II) PROVIDE HIS OR HER
A. 4954 3
1 FORMER EMPLOYER WITH A RIGHT TO MATCH THAT OFFER; AND (III) ACCEPT A
2 MATCHING OFFER MADE BY THE FORMER EMPLOYER;
3 (E) THE ENFORCEMENT BY A BROADCASTING INDUSTRY EMPLOYER OR ANY
4 POST-CONTRACTUAL RESTRICTION FOR A BROADCAST EMPLOYEE EARNING MORE THAN
5 ONE HUNDRED THOUSAND DOLLARS ANNUALLY; OR
6 (F) THE ENFORCEMENT BY A BROADCASTING INDUSTRY EMPLOYER OF ANY
7 POST-CONTRACTUAL CONFIDENTIALITY OR NON-DISCLOSURE PROVISION IN THE
8 BROADCAST EMPLOYEE'S CONTRACT.
9 4. DAMAGES. ANY PERSON WHO VIOLATES THIS SECTION SHALL BE CIVILLY
10 LIABLE TO A BROADCAST EMPLOYEE FOR DIRECT AND ACTUAL DAMAGES ONLY (AND
11 NOT CONSEQUENTIAL OR PUNITIVE DAMAGES), AS WELL AS ATTORNEY'S FEES AND
12 COSTS.
13 S 3. Waiver. The protections provided by section 202-k of the labor
14 law, as added by section two of this act, may not be waived, and any
15 clause, covenant or agreement to waive such prohibition shall be null
16 and void and may not be enforced against the parties in any court or
17 other jurisdiction.
18 S 4. This act shall take effect immediately; provided that the
19 provisions of this act are retroactive and shall apply only to contracts
20 entered into, renewed, or extended on or after August 5, 2008; provided
21 further that the provisions of this section shall not apply to any
22 broadcasting industry employer seeking to enforce a written covenant not
23 to compete that was in effect prior to August 5, 2008 and that has not
24 otherwise been renewed or extended after such date, regardless of wheth-
25 er the termination of employment of a broadcast employee occurs prior to
26 or after the effective date of this act.