Reporter
Rachel Barnhart: Channel 8’s contract won’t let her move.
Gary
Ventura
Rachel
Barnhart won’t talk on the record about suing her former employer. She’s too
worried about jeopardizing her career as a television journalist in this town.
A
former reporter at Channel 8, Barnhart’s a Rochester native, and
she’s always wanted to build her career here. But now, because of a clause in
her contract, that dream’s on hold.
The
clause in question is called a “non-compete clause”: an agreement that an
employee (usually on-air talent) won’t work for a competitor in the same
geographic market for a specified period of time.
The
legal standing of non-competes is ambiguous. In a recent Albany court case, a
weekend anchor won the right to move to a weekday anchor slot at a rival
station.
Yet
despite such precedents, broadcast journalists rarely do what Barnhart’s doing:
suing to void the non-compete clause. One reason is the cost of legal fees and
the stress of being unemployed during court proceedings. Now, a bill before the
state legislature would render the agreements unenforceable in New York.
Local
Assemblymember Susan John is sponsoring the bill — dubbed the “Broadcast
Employees Freedom to Work Act” — in the Assembly.
“In
general, public policy doesn’t like non-compete clauses, because it’s a
restriction of an individual’s freedom,” says John.
Objections
to non-compete clauses take a couple of different forms, but most boil down to
one concept: fairness. Opponents of these agreements frame their argument in
terms of freedom and free-market philosophy: it’s unfair to bar TV
personalities from shopping their skills around to find the highest bidder, and
it stifles competition in the labor market, they say.
“It
really does compress wages in the industry,” says union lobbyist Tom Carpenter.
With a non-compete clause, reporters and anchors “can’t really negotiate to
find out what the market will bear for their services,” he says.
Perhaps
more than anyone else, Carpenter’s responsible for the pending legislation. As
director of legislative affairs for the American Federation of Television and Radio
Artists — the union representing on-air broadcast employees — Carpenter
lobbies for laws like the one now being considered in New York.
AFTRA
has already succeeded in getting similar legislation passed elsewhere,
including Arizona, Illinois, Maine, and Massachusetts.
“We’ve
been working hard on the New York bill,”
Carpenter says. “Obviously, New York is an
important jurisdiction.”
Carpenter
gives the usual arguments against non-competes, but also charges that they
erode viewers’ relationship to TV news, fracturing a sense of trust and
credibility that anchors and reporters build with the public over time. But
who’s really responsible for that trust? And who owns it?
Non-compete
clauses operate on the assumption that if the stations don’t own that trust, at
least they have a stake in it.
Dow
Smith, a professor of broadcast journalism at Syracuse University’s Newhouse
School of Public Communications and former GM at stations in Albany and
Birmingham, Alabama, describes the point of the agreements this way: “You want
these non-compete clauses so — particularly for on-air people — you have
some assurance they’ll be around for a while,” he says. Otherwise, you run the
risk that “you’re creating a star for the other station,” he says.
But
opponents say employees don’t actually get any extra pay for giving their
bosses what amounts to an insurance policy against their own departure.
That
would happen “when there’s free negotiation between the parties,” Assemblymember
John concedes, but usually, she says, “they essentially get imposed by
employers.”
Carpenter
agrees, characterizing non-compete clauses as “boilerplate.”
“It’s
not negotiable for most employees,” he says.
To someone in
Barnhart’s position, abstract talk about the merits of legislation probably
doesn’t capture the urgency of the situation. On March 15th, Barnhart will get
a hearing on her request for a preliminary injunction. The injunction, should
she receive it, will allow her to work at a competing television station while her
suit winds through the court system.
“It’s
the heart of the battle,” says her attorney, Rick Dollinger. “If we can’t meet
the standard of the injunction and prove irreparable harm, we’ll have to go to
trial and she’ll have to wait 6 to 8 months before she can work somewhere else.
In effect, the covenant would have been upheld.”
That
sort of legal catch-22 is “the significant reason why these covenants aren’t
fought out,” says Dollinger. And it’s the reason he’d like to see a law like
the one John is proposing passed.
Dollinger
even asserts that doing away with non-competes would make television news
better, sparking innovation in a medium he believes has grown stale.
“That
model could be refined and improved, and I think that’s good for viewers. It
might prevent viewer attrition,” he says.
Not
everyone agrees. Smith doesn’t see any link between eliminating non-competes
and improving the quality of local television news.
If
anything, he says, “it could hurt a Utica or a Watertown or even a Rochester, which is a
feeder market for other markets” by sparking bidding wars for top talent that
some stations couldn’t afford to enter.
But
Smith isn’t bullish on either the agreements or their enforceability.
“I
think it’s really shaky trying to be able to hold somebody to a non-compete,”
he says. Knowing that, stations tend to use them as leverage when negotiating contracts,
says Smith.
“Nobody
wants to really test these things because they’re afraid they won’t hold up in
court, so they kind of hold it over their head,” he says.
That’s exactly
what John hopes her bill will eliminate.
“I
think it’s dangerous for employers to believe they can stop employees from
working for their competitors,” she says. “It leads to the potential for
increased exploitation.”
The
affidavits filed by Barnhart, Dollinger, and Carpenter allege that’s precisely
what happened: that Channel 8 took advantage of Barnhart’s desire to stay in
the community and uncertainty over the non-compete, using it to bully her in
contract negotiations. (Channel 8 General Manager Marc Jaromin declined to
comment.)
Yet
despite John’s strong words on the subject — at one point she compared
non-competes to “involuntary servitude” — the bill sits in the Labor
Committee, which she controls. Last year it died in that committee.
“It
just hasn’t risen to that point on the agenda,” she says. That’s mainly because
larger issues — she singled out workers’ compensation — have absorbed the
committee staff’s time and resources, she says.
“I
wouldn’t say there’s opposition in the Assembly per se,” says John, “but the
broadcasters’ association is opposed to this bill.” Still, she rejects the
notion that the bill is stuck in bureaucratic limbo.
“It
could very well happen this session,” she says.
This article appears in Feb 22-28, 2006.
