New York State Prohibits Non-Compete Clauses in the Broadcast Industry

August 2008Alerts Alert

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New York State has significantly limited the freedom of employers in the broadcast industry to restrict where their employees work upon conclusion of their employment. On August 6, 2008, Governor Patterson signed into law the “Broadcast Employees Freedom to Work Act,” (N.Y. Lab. Law § 202-k), prohibiting broadcast employers from enforcing non-compete provisions against former employees.

The law applies to both on-air and off-air employees in television, radio, cable, Internet, and satellite-based broadcasting services, as well as any other entity that provides broadcasting services, such as news, weather, traffic, sports, or entertainment reports or programming. While the law specifically excludes “management employees,” it does not actually define who constitutes a “management employee.”

With this law, broadcast industry employers are prohibited in New York State from requiring an employee, as a condition of their employment (whether by contract or otherwise), to agree that at the conclusion of employment the employee will refrain from obtaining employment with a competitor in: (a) any specified geographic area; (b) for any specific period of time; (c) with any particular employer; or (d) in a particular industry.

Employers should take note of a few key provisions in this law. First, affected employees cannot waive this prohibition on non-compete clauses. Any clause, covenant, or agreement waiving this prohibition is not enforceable in a court of law.

Additionally, the law does not apply to agreements not to work for a competitor during the term of the employee’s employment contract. Therefore, employers can still place restrictions on employees who leave to work for a competitor while their employment contract is still in effect. Finally, the law contains a civil damages provision for violations of the Act, along with attorney’s fees and costs.

The new law follows a trend in other states that prohibit non-compete provisions in the broadcast industry or beyond, including California, Massachusetts, Maine, and Arizona.

Application and compliance with this new law requires careful analysis of an employer’s business.

For more information about this topic, contact either Carolyn D. Richmond at 212.878.7983, [email protected] or any member of the Labor & Employment or Media, Defamation & Privacy Law Practices.