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HOW TO FIGHT NON-COMPETES

QUESTION FOR DAN O’DAY:

I have been with my current employer for just over 4 years. I have successfully moved through the ranks, beginning as an Afternoon Driver/ Production Director, to my current position as a Program Director/Morning Show Host. I have been loyal, have given 110% all four years, went above and beyond the call of duty with such acts as working 90-100 hours a week, filling in for part-timers who can't show up, spending nights at our sister station's transmitter site because their PD "lives farther away than you," and tons of other things.

I show up for work everyday at 4AM, to prep a decent show, and if I try to leave to go home before 4PM, I'm an ass. I've been told that, "I'm sick of seeing you leave everyday at 3 o'clock." The owners that I work for (a mom and pop organization) are here every day and are constantly trying to get blood from a stone. If you do 10,000 things for them in a day, they don't say thanks; they look at you as if you're a jerk for not doing 10,001. These people constantly remind us of how they have no money for their employees, yet they can jet off on exotic international holidays. On my 4- year anniversary, all the owner said to me was, "Don't even ask, no raises this year." How's that supposed to make an employee feel?

Well, here's my problem: About a year ago, they introduced to us a non-compete agreement. These people basically held a gun to our heads to sign these. They even went as far as to hint that if we did not sign them, we would be out of a job. At the time, I had just been married, had a pregnant wife, and had just moved into a new house. I could not afford to lose this job, so I signed it. Now, a year later, I have been asked by a station across the street to work for them. Operations Manager, and almost $10,000 more a year. I did not say yes, I did not sign anything, I did not agree to anything, all I did was see if I could find any loopholes, because I knew there was no way in HELL that they would let me go. I had a lawyer look at the non-compete. All of a sudden, last Friday, I got called onto the carpet and was basically read the riot act about how much of an disloyal, unfaithful bastard I was, how could I even think of doing this, there's no way in Hell we're going to let you out of this, I'll sue your ass just to spite you if you try to leave, why do you want to go work with that ****, he doesn't have a pot to piss in....You get the idea.

Well, come yesterday, I get a call from the attorney, who says that the contract is pretty much ironclad. So here I am; I can't get out of this contract and stay locally. It's warmer in Siberia than it is around here; the owners have sat in their offices with the doors closed all day, they haven't spoken to me. If I see them, they look the other way. So I am caught between a rock and a hard place right now.

Any advice?

DAN REPLIES:

1. If they did not give you some sort of compensation in return for signing the non-compete and if it wasn't a formal contract renegotiation....That is, if they just said to you one day, "We've decided that all of our employees must sign this non-compete agreement"....then it's not a legal contract. A legal contract requires consideration from both parties.

2. Get yourself a lawyer who has experience in labor issues (not someone on the local bar association's "lawyers for rent" list).

3. > I'll sue your ass just to spite you if you try to leave<

Does your employer have a history of suing people? If so, then the threat probably is real. Most small & medium market station owners, however, will almost never file suit because they don't want the legal expenses. If your employer does NOT have a history of lawsuits, I recommend you ignore the threat. The problem then, however, is that your prospective new employer WILL be scared off by the legal threats.

4. Once you find a good, aggressive attorney with experience in labor law, carefully examine the following issues as they apply to your employment:

A) Has the station obeyed state laws regarding overtime?

B) Has the station abided by all applicable OSHA rules (protecting workers in the workplace)?

C) Has the station management requested or insisted that you violate one or more local, state or federal laws? (Remember, telling you to "just ignore that" law is a violation.)

For example, were you ever instructed to record a commercial over a copyrighted musical recording for which the station did not pay a commercial license fee? (Such use is not covered by the ASCAP and BMI fees that probably pay.) If so, they have violated federal copyright laws. Perhaps of greater interest to your employer is the fact that if the copyright holder finds out and obtains documentation of such a violation, your employer can expect to pay a substantial court judgment.

D) Has the station ever directed you to take actions that are prohibited by FCC regulation? Have you ever been told to falsify a program log or operating log?

E) "Why do you want to go work with that *****, he doesn't have a pot to piss in" -- Has the owner of the competing station been slandered by such remarks? If so, does that person wish to consider legal redress?

F) Given the language you say your employer used in that conversation, is that typical of your employer's way of talking to you as an employee? If so, does that fall under the legal umbrella of workplace harassment?

G) Operations like the one you work at invariably use up half their commercial inventory in trade for goods & services that go directly to the owner and the owner's family. Unfortunately, in such operations the owner often forgets to diligently report the value received from such trades as income upon which taxes must be paid. Can you in good conscience continue to work for such an employer?

H) Were you hired by the company that owns the two local stations or by the one radio station for which you work? (I realize they have the same owner.) If you were hired to work at just one radio station, they have no legal right to insist that essentially donate your time to their sister station by spending nights at the other station's transmitter site. You are entitled to economic redress.

I) Given the brutal conditions under which you have worked for four years (90-hour work weeks, being screamed at if you want to go home after putting in an 11-hour workday, verbal abuse, threats, intimidation), I'm wondering in what ways you have been affected physically and emotionally and if as a result you have legitimate grievances for which you are entitled to financial compensation.

J) The type of operation you're describing typically flaunts other laws & regulations, including FCC regulations regarding minority employment recruiting. Have you found yourself working at a place that habitually fills job openings without first making a good faith effort to find qualified minority applicants? Have you suffered the disgrace of working for an employer who during your years of service made it a practice of hiring a non-minority but subsequently advertising the no-longer-available job opening to minorities in a fraudulent pretense at fair employment?

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