This bill would allow an exemption to section 202-k of the labor law and permit the negotiation of non-compete, post-employment agreements between a broadcast employer and “key" broadcast employees. Section 202-k does not currently permit such agreements. The Business Council supports this legislation.
- In highly competitive industries in the private sector, non-compete, post-employment agreements are commonly negotiated between employers and key employees where the employer seeks to protect trade secrets or proprietary information or intends to invest substantial resources in employee training and development. These agreements have been and continue to be commonly used in industries as diverse as computing, banking and hair styling. A non-compete agreement limits an employee from working with a particular employer or industry, in a specific geographical area, for a specified period of time after the conclusion of employment with the current employer. For these industries, it is but one part of the overall employment negotiation process.
- In the broadcasting industry, employers spend substantial amounts of money to recruit, market and pay key employees. Their employment relationship is unique given the resources spent to market and brand a key on-air personality to a particular broadcast station. The market competitiveness of a broadcast station sometimes succeeds or fails based on how well the key on-air personality has been personified to the viewing public through the station's investments. The use of reasonable non-compete agreements by the broadcast industry to protect its investments in key employees is necessary and appropriate.
- In New York State, these post-employment agreements were banned from use with all broadcast industry non-management employees in 2008. This outright ban includes the top key on and off-air talent.
- In New York State, no other industry or profession is subject to a comparable ban. For example, in the newspaper industry, negotiation of non-compete agreements between employers and top reporters and columnists may occur.
- This bill would keep the ban in place for 90% of broadcast employees. Only the highest compensated 10% of employees, or one of five designated key non-management employees would be affected.
- This bill would put this small number of key employees in an even better negotiating position with the employer since the employer would want a condition of employment (a post-employment non-compete agreement) not permitted with other broadcast employees.
For these reasons, The Business Council supports enactment of this bill by the New York State Legislature