On August 6, 2008, Governor Paterson signed the Broadcast Employees Freedom to Work Act into law, effective immediately, which bans broadcasting industry employers from conditioning employment of non-management broadcast employees on the signing of post-employment non-compete agreements. Any broadcasting industry employer who violates this law may be civilly liable to the broadcast employee for damages, attorneys’ fees, and costs.
Specifically, the law states that affected employers:
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.
The law broadly defines “broadcasting industry employer” as:
television stations or networks, 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 entertainment reports or programming.
“Broadcast employee” is similarly broadly defined as “any on-air employee or off-air employee of a broadcasting industry employer, excluding management employees.”
Clearly, this law only applies to employees, not independent contractors. It also does not seek to regulate post-employment restrictions other than non-compete agreements, such as customer nonsolicitation agreements, or confidentiality agreements. Presumably, forfeiture for competition agreements, which give employees the choice to forego post termination benefits in exchange for an agreement not to compete, are still valid.
Further, the law does not attempt to regulate employment requirements during a term of employment.
Certain issues under the law remain unclear, however. For instance, the law does not indicate whether it applies to employees of New York broadcast companies who work outside of New York or to only those employees working in New York. The law also does not define the “management employees” who are exempt from the law’s prohibitions. The law also is silent as to whether existing restrictive covenants can be enforced.