June 17, 2011
This weeks "Ask The Attorney" segment involves something all of us hate to do. Fire an emplyee. The scenario. "There is a 10-year radio salesperson at your station. The policy of the company is, miss a goal one month, it's a warning. 3 more consecutive misses - termination. We recently followed the station policy to the letter with a green salesperson. My 10-year salesperson just missed 4 months in a row. Sales can be especially sticky since they are usually commission based. What is the typical severance for a sale rep who has been on board for multiple years - and how should that be spelled out in a contract - to protect both sides and clarify all nuances?
John Garziglia says: If there is one area of law concerning broadcast stations that is particular, and many times different from state to state, that area is employment law. Stations must contend with Federal employment regulations, of course. But, on top of the Federal regulations are local laws and regulations which can often vary dramatically from jurisdiction to jurisdiction.
Your question is illustrative of why it is good for radio stations to have a local lawyer well versed in employment law advising on the drafting of employee contracts, employee manuals and workplace policies, and available when a sticky employment termination situation presents itself. Radio stations have a variety of different compensation and severance schemes for salespeople. I certainly cannot offer advice as to what is typical or proper, or whether any general compensation scheme comports with the law as the law varies from state to state.
There are many questions that can arise with respect to commissioned sales people. The questions include questions such as whether a salesperson can be required to attend lengthy meetings before or after employment hours, what employee expenses must be reimbursed, whether salespeople are exempt from payments for overtime, whether a written document describing compensation must be signed by the employee and employer, whether there is an obligation to pay severance payments, whether the level of commissions or bonuses affect amounts of overtime that must be paid, what commissions must be paid upon termination, how quickly commissions must be paid after termination, what rights if any a salesperson has upon termination to pursue a former employer?s advertising clients at new employment, whether a non-compete is enforceable against a terminated salesperson, and so on. In many instances, the oil filter marketing slogan of "You can pay me now, or pay me later" is equally applicable to a lawyer?s services advising on employment law.
From the FCC?s perspective, a full-time salesperson vacancy is subject to the same FCC EEO outreach and wide dissemination requirements as any other vacancy at a radio station that has five or more full-time employees. Be certain that upon any full-time salesperson job vacancy, a notification of the vacancy is sent to each employee recruitment source requesting notifications, and that a wide dissemination is made of the vacancy with records being kept of that wide dissemination, the number of interviewees from each source and the source of the actual hire. The FCC has stated that simply posting a job opening on the internet, or running generic employment ads on the station itself, is insufficient to fulfill a radio station?s obligation to widely disseminate information on a job vacancy. A station?s license renewal application, when filed, must contain a copy of the past two years of the station?s Annual EEO Public File Reports in a related filing. Therefore, special attention to full and complete EEO compliance now with license renewal applications being imminent for many stations is especially prudent.
Good radio salespeople are tough to find. Do not add to the inherent difficulties in employing good salespeople by ignoring either employment law, or the FCC?s wide outreach EEO requirements, in your salespeople hiring and retention activities.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com. Have a question for our "Ask The Attorney" feature? Send to edryan@radioink.com.
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