S T A T E   O F   N E W   Y O R K
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                                  5616

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 7, 2011
                               ___________

Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
  printed to be committed 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:

  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  Section 202-k of the labor law is REPEALED  and  a  new  section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, EXCLUDING MANAGEMENT EMPLOY-
EES.
  (D)  "MANAGEMENT  EMPLOYEE"  SHALL  MEAN AN EMPLOYEE (I) WHOSE PRIMARY
DUTY CONSISTS OF THE MANAGEMENT OF THE ENTERPRISE IN WHICH SUCH INDIVID-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01109-01-1
              

S. 5616                             2

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 SEVERANCE OR 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 (BUT IN ANY EVENT AT LEAST NINETY
DAYS FROM THE TERMINATION OF A BROADCAST EMPLOYEE'S EMPLOYMENT AGREEMENT
OR ARRANGEMENT), SUCH BROADCAST EMPLOYEE HAS AGREED TO NEGOTIATE  EXCLU-
SIVELY 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 (BUT IN ANY EVENT AT
LEAST NINETY DAYS FROM THE TERMINATION OF A BROADCAST EMPLOYEE'S EMPLOY-
MENT 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 FORMER EMPLOY-
ER  WITH  A RIGHT TO MATCH THAT OFFER; AND (III) ACCEPT A MATCHING OFFER
MADE BY THE FORMER EMPLOYER;

S. 5616                             3

  (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.