CONTRACTUAL SERVITUDE
Some states outlaw dreaded non-compete clauses
by Deborah Potter

Listen carefully and you may just hear the sound of chains breaking in TV newsrooms. Not many so far, but enough to raise hopes among broadcast journalists that the companies they work for may soon have to stop treating them like chattel.

The good news comes from states like Illinois, Maine and Massachusetts that recently joined California in outlawing "noncompete" clauses in broadcast employment contracts. The wording of such clauses varies but the effect is the same: If your contract has one, you can't work for a competing station in the same market for a certain period of time. The Illinois ban took effect January 1. Arizona and Missouri could be next, and similar bills have been introduced in Washington and North Carolina.

Ray Depa, general manager of KGUN-TV in Tucson, AZ, believes non-competes are essential to protect a station's financial investment in its anchors and highly specialized reporters. "We invest a great deal of money to promote our on-air talent," he says. "If they're allowed to walk across the street and go to work for the competition, I don't think that's fair."

Because of non-competes, some high-profile anchors have been forced to sit at home instead of practicing their craft. Tracy Rowlett, who worked at WFAA in Dallas for 25 years, was off the air for nine months before joining cross-town rival KTVT; Barbara Ciara waited a year after leaving WVEC to return to the anchor desk at WTKR, also in Norfolk. Ultimately, though, they got what they wanted: same job, same town, different station.

But how does the "investment protection" reasoning apply to a 22-year-old producer? That's easy. It doesn't. And yet producers today are almost as likely to be covered by a non-compete agreement as on-air reporters. Bob Papper of Ball State University who tracks broadcast news contracts says about half of all reporters and producers are under non-competes. Even photographers and assignment editors-mostly anonymous and never promoted on billboards-are having to sign contracts that would force them to wait six months or longer before taking a job with a competitor. According to Papper's 2000-2001 survey, the percentage of TV news people covered by non-competes jumped almost 17 percent in just one year, to 43 percent. "About the only contracts I see without non-competes are in states where it's illegal," Papper says.

Stations can invoke these clauses even when they lay off, fire or don't renew an employee's contract. It's dog-in-the-manger behavior at its worst: We don't want you, but they can't have you, sometimes for as long as three years.

Why on earth do people sign these things? Mainly because they don't have much choice. "Employers wield overwhelming power," says Dominique Bravo, legislative and legal affairs director for AFTRA, the union that represents broadcast talent. In a tight job market and in a consolidated industry like broadcasting, she says, "You sign or you don't get the job."

Employers who favor non-competes say it's discriminatory for states to make them illegal only for broadcast contracts, pointing out that doctors, sales people, and even employees at nail salons sometimes sign similar agreements. But AFTRA argues that sales people can always switch to another industry, keep working and stay in the same town. Broadcast journalists either have to wait, move or get out of the business. Unless, of course, they're in management. Most news directors, assistant news directors and general managers are not asked to sign noncompetes.

Jon Du Pre, a Fox News reporter in Los Angeles, says he never would have moved if he hadn't been forced to because of a noncompete clause in his contract at KPNX in Phoenix. "It's tough having to start over every few years," he told the Arizona Republic. "I promised I would not do this to my kids, but it turns out I am because of the nature of this business."

But Depa says that eliminating noncompetes may hurt the very people it's supposed to help. "We pay more when people sign a non-compete," he says, suggesting the reverse might also be true: if non-competes become illegal, salaries could go down.

Considering how little producers are paid these days, that's hard to imagine. And getting rid of non-competes won't stop stations from locking people up in other ways. "I'm increasingly hearing about starting contracts that are for three years," says Papper, "and the salaries are frequently abusive." Many contracts also include standard language giving stations the right to terminate the agreement at any time for any reason on just 60 or 90 days notice.

So it's not as if employers will lose all that much if noncompete clauses become illegal. But journalists could gain plenty: the right to put down roots, get to know a community, and serve the viewers, even if the call letters of the station they work for happen to change.

This article was originally published by American Journalism Review, April 2002.

(Update: The Arizona legislature has approved a ban on noncompetes. Gov. Jane Hull signed it into law on May 21, 2002.)