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To "Air" is Human, But Former Employees Will Not Forgive

A radio station's most avid and litigious listeners are often former employees. These individuals, who often have an axe to grind, are quick to sue if the circumstances regarding their departures are discussed on-air.

Because former employees are often disgruntled, their emotions can make them extremely difficult adversaries. Likewise, their knowledge of the inner workings of their former employer's operations and the personalities involved make them knowledgeable and dangerous litigants. As a result, it is important to educate station employees about the risks of claims brought by former employees.

An increasing number of lawsuits are being made against radio stations by former employees as a result of on-air comments made by colleagues or successor disc jockeys. These off-the-cuff comments, which often regard the circumstances of employment termination, are not only embarrassing to the former employee, but may violate confidentiality agreements made by the employer.

Statistics compiled by the Liberal Defense Resource Center in New York indicate that one out of every six lawsuits filed against radio stations in 1996 was brought by former employees. More than half of these claims were premised upon either libel or civil rights violations. The remaining claims were based upon invasion of privacy, breach of contract, tortuous interference, assault and battery and wrongful termination.

Most of the cases arise from flippant comments made on-air by disc jockeys about a colleague's sudden departure. In the usual case, a disc jockey will make creative and rarely flattering speculations that the former employee "got caught stealing, drinking, using drugs, etc." while at the station or on the air. In one case, a disc jockey said that a former employee had stolen a number of compact discs from the station and had even stolen food from the lunchroom, "and anyone who would steal food from co-workers obviously has mental problems." The former employee contended that he had been libeled twice -- as a thief and as being mentally unstable.

Offending statements that are made about an on-air personality with his or her consent may come back to haunt the station if this individual's employment Is later terminated. This is especially true if a former employee was part of a morning show team whose banter included the trading of insults. Statements such as "John is older than dirt" or "John was caught having sex in the control booth" may in fact be encouraged by the employee himself or by the management as publicizing or embellishing the on-air "personality." These comments, however, cease to be funny when the individual is no longer employed by the station and may serve as the basis for an age or sexual discrimination case.

When offending statements are made about former employees who have subsequently been hired by rival stations, additional problems may arise. In one case, a disc jockey stated that a former employee, now employed by a competing station, "had a drug problem." In this case, not only did the former employee have a cause of action for defamation, but so did the rival station. Claims made by competitors are always very contentious and expensive to defend.

While most claims arise because disc jockeys love to engage in on-air speculation about the recent, sudden and mysterious departures of colleagues, comments are sometimes made about employees who left the station years ago. In one particular case, a talk show host left the station as part of a mutual agreement under confidential terms. Several years later, a disc jockey wished a happy birthday to Jane Doe, "who used to work here until she got fired a couple of years ago." The former employee sued for libel and breach of contract because the statement was untrue, and the circumstances concerning her departure were confidential.

Other claims arise because of management's failure to communicate a talk show host's departure with the marketing department. In one such example, a former employee made a claim for misappropriation of his name because the station continued to promote him and his talk show after his employment had ended. Such promotions may take the form of recorded advertisements or may be literature or billboards promoting the station that include the former employee's name or photograph.

Station managers and on-air personalities need to exercise caution when making comments about a former employee and the circumstances surrounding his or her departure. While such comments are usually intended to be humorous, former employees rarely think so, particularly if the comments relate to criminal or embarrassing activities or questions regarding the individual's occupational competence.

Accordingly, management should never condone comments that might be perceived as racial, sexual or age discrimination or that accuse the employee of criminal, unethical or incompetent conduct. Similarly, station managers should be especially wary of any recurrent comments or themes that are broadcast concerning on-air personalities if they believe these individuals might later complain about such behavior if the employment relationship ends.

Reprinted by permission of NAB Quarterly

(http://www.nab.org)

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