A General Manager recently sent in a question about a morning man he had but was afraid he was going to lose. Broadcast attorney John Garziglia took this question on. "I have a morning host whom I suspect is looking for another job. He is really popular and we can't lose him. What are the pros and cons of asking him to sign a specific length contract and do I need to get a lawyer involved or is a simple agreement letter enough?"
John Garziglia says: I love it! A question that starts off by asking ?do I need a lawyer??. So, rather than writing four or five paragraphs of legal gobbledygook and then gently suggesting that hiring a lawyer might be prudent, I can just answer ?yes? and be done with it. In all seriousness, however,employment law is one of those areas where legal advice and insight often means the difference between an employer achieving its aims, or an employer becoming embroiled in lawsuits and discrimination complaints in a misguided attempt to either keep, or get rid of, employees. Employment law in each state is different. What works in one state may blow up in another state. What is a perfectly acceptable employment practice in one state may be useless in another state.
If it is important to keep an air personality, there are two general employment agreement approaches. The first is a restrictive covenant (i.e. a departing employee is prohibited from working for a competitor within a certain geographic area for a certain amount of time). The second is a contract binding an employee to work for an employer on certain terms for a specified time period.
Bill Long, an employment law litigator of my law firm?s Atlanta office, offers specifics. Bill observes that in Georgia, an employment contract binding an employee to work for a for a certain length of time is not unusual. Such a contract is enforceable if properly crafted. Employers must keep in mind, however, the restrictions of the 14th Amendment which prohibit involuntary servitude. If an under-contract employee was to leave prior to the end of the agreed-upon term, that employee may be liable for damages but it is unlikely that any court would order an employee to continue his or her employment with a specific employer. Bill notes a Georgia case which approved a contract clause requiring an employee to work for the employer for at least 12 months and holding that the employer could recover damages resulting from the employee?s leaving early, even though the employee was ?at will? and could be terminated at any time by the employer! Such a contract provision, if enforceable in other states, would certainly would put a crimp into any air personality?s ability to depart a particular position.
Another specific instance of a creative employment contract provision occurred in Massachusetts where broadcast air personality non-competes are unenforceable. A contract clause enabled an employer to keep an air personality in its employ by providing the employer an opportunity to extend the air personality?s employment by matching any offer that the employee received from another station (for specifics on this case, do a Google search on ?Why Can't Howie Carr Change Employers??).
There are a variety of other tactics that an employer can use to make it more difficult for an employee to leave for another station. Employees can be subject to restrictive covenants such as non-compete covenants, non-disclosure of confidential or proprietary information covenants, non-solicitation covenants and non-piracy covenants. Such covenants, if properly drafted, can make it difficult for an air personality to take material developed while in the employ of one radio station to another station, possibly even including restrictions on taking an air personality?s persona from one station to another under certain circumstances.
None of this works, however, if it is either prohibited or not enforceable under the relevant state?s laws. It is also worth noting that new employment restrictions or covenants generally require consideration which likely means more pay or other benefits to the air personality. So, to keep a certain air personality at a radio station, there are ways to change that employee?s terms of employment with that employee?s assent to make it more likely the employee will stay over the long term rather than leave. But, consultation with an employment lawyer in the particular state in which the employee is employed is essential for the document drafted, to use a trite phrase, to be worth the paper it is written on.
Answers to our questions are for informational purposes only and should not be taken as legal advice. If you believe you need an attorney, you should call one.
John Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at 202-857-4455 or jgarziglia@wcsrcom
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