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Just clause? Trying to change channels 

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.

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