In February, I told you about a class action suit against Fisher and Sinclair over alleged FLSA violations.  At issue in that suit, and of concern to many broadcast groups, is whether certain classes of journalists are exempt under the FLSA’s overtime requirements.

You can read my original post here.

In March, the broadcast groups answered the Complaint and responded with two short, but meaningful Counterclaims.  You can read the Answer and Counterclaims here.  Simply put, Sinclair and Fisher are asking for prevailing party’s attorney’s fees under Oregon Statute, if the Plaintiff class loses its case.

The Counterclaims:

1. Defendants incorporate all of the matters admitted and alleged above. Defendants are entitled to their reasonable attorney’s fees under ORS 653.055(4), to the extent that
 ORS 653.055 applies, and to the extent Defendants are the prevailing party on claims under 
ORS 653.055.

2. Defendants are entitled to reasonable attorney’s fees under ORS 20.105, to the extent it is the prevailing party on claims and grounds asserted by Plaintiff without an objectively reasonable basis.

This is significant because it effectively shifts the behind-the-scenes burden back to the Plaintiffs to make sure their suit is not frivolous.  Often, plaintiffs’ attorneys will take cases like these on a contingency basis (NB:  I know NOTHING about the nature of the payment arrangement in this case).  As a result of the Counterclaims, the Plaintiffs now have real exposure of having to actually spend significant amounts of money if they lose.

Of the above two statutes cited, the second one is far more broad (and subjective):

(1) In any civil action, suit or other proceeding in a circuit court or the Oregon Tax Court, or in any civil appeal to or review by the Court of Appeals or Supreme Court, the court shall award reasonable attorney fees to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and to be paid by the party asserting the claim, defense or ground, upon a finding by the court that the party willfully disobeyed a court order or that there was no objectively reasonable basis for asserting the claim, defense or ground for appeal.

(emphasis added).

Last month, I directed you to a Title VII (and Arkansas Human Rights Act) claim against Little Rock television station KTHV and Gannett, its parent company. As I pointed out, it was unclear at the time what the Plaintiff’s status was, as he had been removed from the station web site and the trades were silent about any separation between the sports reporter and the station.

You can read further background here.  In his Complaint, the sports reporter alleged racism in hiring and promotion.

We now know that the reporter was terminated by the station (and the company) on April 15, 2014.

Evidently, upon being terminated, the Plaintiff rushed a charge of retaliation to the Little Rock EEOC office, which not twenty (20) days later, issued a “right to sue” letter on that charge.  Accordingly, on May 8, 2014, the Plaintiff amended his charge to include a cause of action for retaliation under these statutes.

Retaliation is one of the most common claims facing employers under the anti-discrimination statutes.  There is a rebuttable presumption of retaliation in some jurisdictions if the firing happens in close proximity to the alleged underlying discrimination.  In this case, the Plaintiff argues he was fired within two months of filing suit, and that the “temporal proximity” suggests retaliation.

You can read the Second Amended Complaint here.

An excerpt:

34.  On April 15, 2014, a short period after filing his EEOC claim and this federal lawsuit, Gannett abruptly and unilaterally terminated Plaintiff. Gannett, as part of its retaliatory scheme, retaliated against the Plaintiff and unilaterally terminated the Plaintiff from employment before Plaintiff’s brief contract extension had even run through the end of April.

35. Gannett terminated Plaintiff. However, Plaintiff, at all relevant times, had sought to be promoted to the position of prime-time anchor and director with Gannett and remain in employment with Gannett. Gannett’s acts were direct and affirmative employment retaliatory acts to terminate Plaintiff for filing a charge of race discrimination with EEOC and for seeking remedy in the law and equity by filing this federal lawsuit for being denied a promotion on the basis of Plaintiff’s race.  As a false cover or “pretext” to mask and conceal Gannett’s retaliation against Plaintiff for Plaintiff exercising his lawful rights to file a federal lawsuit and seek remedy for employment discrimination, Gannett brought up false, misleading, bogus and untrue allegations against the Plaintiff at the time of its unlawful, retaliatory termination.

The following is provided for educational purposes only and is designed to identify the key terms that are ubiquitous in broadcast employment agreements. At various points during this summary, I will highlight those items that may be negotiable, recognizing, of course, that new journalists are generally approaching the business relationship from a weaker bargaining position because these jobs are in such high demand.

Job Description/Duties: This is obviously going to be a provision of significant importance to someone who wants to appear on-air. Increasingly, broadcast contracts that include a description of your “job duties” will only describe you as an “employee” and not as an on-air reporter, or mainline anchorperson (for example). The reasons for this favor the employer: They do not want to hire you for an on-air position only to find that your employment in that capacity does not work out for some reason. At the start of your career, you should expect to find contract language that basically requires you to commit to work exclusively as an employee for your new employer to perform full-times services “as reasonably may be required by Company” in the employer’s discretion. It means what it says.

While you may be responding to a job posting for a dayside reporter position, your contract will likely only establish that you are an employee, hired to do whatever the company needs you to do. I should add that you will rarely see an employer agree to contract language that sets forth your shift. If things change, they will want to retain the flexibility to move you around. If, for example, you have become a lead story reporter, working Monday through Friday dayside, and the weekend reporter quits, you may be reassigned to work weekends indefinitely. That said, in larger markets, employers may be willing to negotiate this language. I am certainly aware of reporters whose contracts provide that they are being retained as “investigative reporters” or anchors who are hired to “anchor”. In these cases, the contracts usually provide that if the employer elects to reassign you, the contract “re-opens” for further negotiation (and new payment terms are ostensibly negotiated). Again, this is the exception to the rule. The general rule, particularly when you are starting out, is that the company is hiring you to do whatever it needs you to do during the “term” of the agreement.

Additionally, I’ve written elsewhere on this web site, there is a legal divide over whether journalists should be entitled to overtime under the Fair Labor Standards Act (“FLSA”). For this reason, and DESPITE the fact that the potential employer is unlikely to “name” your job title in the employment agreement, you are increasingly likely to see language in the agreement whereby you agree that you are “exempt” from the overtime requirements under the FLSA. Legally, your agreement to being classified as “exempt” does not let the employer off the hook for violating federal law (i.e., if you should be getting overtime, and are not), but you should nevertheless keep an eye out for this language and know what it means. If you are “exempt”, your new employer does not have to pay you overtime. If you are non-exempt, then you are likely to be paid an hourly rate and asked to keep track of your time on a weekly basis. For this reason, many broadcast companies are including language in their employment agreements requiring you to agree that you are exempt. The thinking, I suppose, is that if you agree to such language in the contract, you may hesitate to sue under the FLSA for overtime you SHOULD have been paid. While it may have a chilling effect on potential lawsuits, you cannot “contract away” your FLSA rights under federal law.

Term: This refers to the “length” of your employment and the standard employment agreement in the broadcast industry typically lasts from two to three years. Much to the chagrin of young journalists, who simply want to build a tape and move on to larger markets, the stations want to hold on to you for as long as they can. Remember, the longer you are there, the more valuable you become to them. Just as you learn how to use the equipment, how to pitch and develop story ideas, and how to generate stories, the community learns to recognize your face. Even in markets which do not rely on Nielsen meters, but which conduct occasional surveys, viewers are asked about who they remember, who they identify with a particular station. This is why you are not likely to encounter a one-year employment agreement. It is simply not worth it for a news department to teach the community that it can trust you, to make you a part of that station’s brand, only to have you disappear. Admittedly, the length of these agreements often intimidates young journalists, particularly because they are moving to small, remote cities to launch their careers. Depending on who the potential employer is, you may be able to negotiate certain “outs”, which could have the effect of releasing you from your employment upon the occurrence of a particular event (a job offer from a top-75 market, a spousal relocation, or a job offer from a non-broadcast related employer, for example). In my experience, small market employers understand the motility in the industry, and are often willing to negotiate reasonable “market-specific” outs into broadcast agreements. So, for example, if you sign a three-year deal in Market 170, the employer may agree to give you an “out” (or release you) during your third year, if you can show that you have a bona fide job offer from a station in a top-100 market.

Salary or rate of pay: This is typically the “hot” item for young journalists, who believe that if they can negotiate an additional two or three thousand dollars in annual compensation, the other contract provisions become less important. The truth of the matter is that entry level salaries have always been low, regardless of your pedigree. For your first job in a small market, you should expect to make from $18,000 to $28,000, the greater amounts typically reserved for line producers or specialty reporters/anchors. In 2011, a survey of recent journalism graduates found median salaries hovered in the $30k range. Typically, your first contract will also offer nominal percentage (3-5%) increases from year to year. Stations (and station groups) differ in their flexibility on compensation. First, there is the group of stations that will not budge. They have a line-item on their budget for new reporters and they will not let their news directors stray from it. Next, there is a group of news directors who have a lot of flexibility. They will make you a low-end offer with the expectation that they may have to come up a bit (and will leave some money aside just in case). Depending on the timing, their needs and your appeal to them, they may even exceed what they have set aside. The truth is that most new reporters do not attempt to negotiate, but are so grateful for the opportunity and so fearful of alienating an interested employer, that they pounce at the first offer. It is my opinion that you should ALWAYS find a delicate way of asking the offeror if there is any flexibility in their contract, because there usually is somewhere. Finally, there is, increasingly, a group of employers who are hiring new talent as non-exempt employees (under the FLSA) with offers of hourly pay plus overtime. Like salary, hourly rates may be negotiable as well. I think this is where television compensation is going and I do not think it is a terrible thing. You will most definitely work overtime; it always feels better to be compensated for it.

Vacation: Traditionally, the most you can expect here is two weeks per year. Increasingly, stations are requiring employees to “earn” vacation time through weeks or months worked, which means you do not get to take it until you have been there for a certain amount of time. The effect is that you will likely work your first six months without getting a week off. Alternatively, a number of station groups have adopted a “paid time off” (“PTO”) structure, which basically gives you a certain amount of time off each year which includes sick time and vacation time. You use it however you want to use it, but once you have exceeded your PTO, you are taking time off without being paid for it. Because variances in vacation agreements make scheduling news staff difficult, employers are often uncomfortable about negotiating this. That said, you will often hear stories about the longtime anchors who have contractual agreements to be off on their birthday every year, or a particular holiday. Vacation time IS negotiable, but for new journalists, it may be a hard pitch.

Re-Assignability: This is an area about which new journalists should be sensitive. It is very, very common for employers to reserve the right to re-assign you. As mentioned above, this makes sense from a management standpoint. If I hire you to be a reporter, and only discover after hiring you that you cannot write, or cannot get through a live shot without stumbling over yourself, why should I be contractually required to keep putting you on my air? You can understand this logic. The problem is that it has resulted in language that grants very broad discretion to employers to reassign people. Executive producers get re-assigned to produce overnight shows. Anchors become one-man bands. Horror stories abound about re-assignment. Such provisions usually require you to “perform such other duties including, without limitation, producing, photography/videography, editing, writing, reporting, managing assignments, as well as other newsroom tasks as may be identified by Employer in Employer’s sole and absolute discretion.” This almost always appears in a broadcast contract in one form or another. Although there are various legal theories that might support a claim based on an oral promise, you should know that when you sign an employment agreement, you are agreeing to the language contained within the four corners of the agreement, and NOT to any oral promises made to you by the news director.

In fact, there is usually a provision in employment agreements that says just this; it is called a merger clause or an integration clause, and usually appears under the heading “Entire Agreement.” The idea of this provision is that you are contractually agreeing that this writing – the contract – represents the entire agreement between the parties.

Work for Hire: This is a provision that is not new to the world of contracts, but has been popping up in broadcast employment agreements with greater frequency. It derives from the concept that when you create something, you ordinarily own the copyright interest in that something. Increasingly, broadcast agreements have these provisions where you agree that anything you create, during the scope of your employment, belongs to the company (and not you). For example, if you come up with a great franchise idea while on the job? It belongs to the station. What if you are a reporter who has created a personal blog? Depending on the express language of this provision (and whether you created and contributed to your blog on your own time), that blog might just be the intellectual property of the station.

Termination for “Cause”: This usually comprises an entire section in employment agreements and it provides for when you can be fired for cause (as opposed to being fired for no reason at all). You need to be concerned with how “cause” is defined. Ordinarily, it includes a breach of the agreement, including a refusal to perform assigned tasks, failure to comply with handbook policies, conduct which hurts the reputation of the employer (think DUI), insubordination, criminal conduct, etc. You get the picture. The problem arises when employment agreements include even broader language in their definitions of cause. I recently reviewed a contract that provided that an employer could fire an employee if the newscast to which he was assigned was eliminated. Other contracts include “ethical lapses” in the definition of “cause.” Obviously, the broader the language, the more SUBJECTIVE the language, the more discretion the employer has to terminate you for cause, even if it is undeserved. You should read closely this section in your employment agreement and understand just how much latitude you are giving your new boss to terminate you. If they fire you for cause, you are not ordinarily entitled to any severance benefits and, depending on state law and the station’s stated reason for dismissing you, may be ineligible for unemployment.

Termination w/out Cause: This is the other route to termination. Stations almost always reserve the right to let you go, for no reason at all, with a certain amount of notice. In my experience, this usually IS negotiable, and you should give some thought to this before you sign. This provision usually says that the station may fire you at any time without cause, “with no less than ___ days prior written notice, or in lieu of such notice, upon payment of the base salary for such notice period.” If your employer decides to let you go, but has no good reason to do it, this provision effectively allows him to buy you out. This happens a lot and, where salary may not be negotiable, this may very well be.

Liquidated Damages: The concept behind liquidated damages provisions is to acknowledge that when you first hire someone you have no true sense of what damage will be caused to you in the event of their breach. Translated: If I hire John Smith tomorrow to be my reporter for the next three years and he breaches the contract in year two (and quits), I cannot say with any certainty how much damage his quitting will cost me. Perhaps I have promoted him to main anchor? Perhaps I have spent enormous amounts of promotional time marketing him? Perhaps he broke a huge national story and the community loves him?

Conversely, perhaps he is a dud. Perhaps, I planned big things for him, but he just could not deliver, or my budget was cut, or he started phoning it in.

Courts loathe uncertainty in contract damages and so a “liquidated damages” provision is an attempt by the parties to agree, AT THE TIME OF CONTRACT, to a reasonably foreseeable damages amount in the event of a subsequent breach by the employee.

Particularly with new journalists, this is a difficult number to predict. An employer should try to anticipate their plans for the employee, both in terms of assignment and marketing, and should try to fairly and reasonably estimate what it would cost them if the employee walked out. Because this is basically the employee’s legal way to buy himself out of a contract, employers will sometimes make these amounts unmanageable. For example, you may be hired as a $22,000 per year general assignment reporter with a $10,000 liquidated damages provision. Why should you have to pay that much to get out of your agreement? Has the employer really invested that much in you? Will it cost them that much to recruit someone to replace you? Or, altenatively, is the employer just trying to prohibit you from leaving?

Pay attention to this language! It may be negotiable and, particularly during your early years, your ability to move on may be directly tethered to this amount.

“Outs”: These usually never appear in a first offer, but are often available upon request. The concept is that you are bound to the contract as it stands, unless some specific event arises which would allow you to resign without breach. If you find the potential employer is not budging on salary or liquidated damages, you might consider requesting one of these narrow-drafted “outs” to be added to your agreement. An example of “out” language is as follows: “Station agrees that at anytime during this agreement, if the Employee receives a written offer of full-time employment from a television station located within any of the fifty (50) largest television markets in the U.S. which does not compete with Station, it will permit the Employee to be released from his employment obligation with Station upon sixty (60) days written notice.” Stations may be amenable to giving you an “out” if it is sufficiently narrow and tailored to you, and does not put them in a position of establishing a murky precedent. You need to be creative here. Market outs, like the one I described above, are common. Imagine your potential employer will not agree to give you a top-50 market out. Perhaps, if you explain that there is one specific market, where your family is, the employer will let you have an out in the event you get an offer there. Perhaps you can persuade the employer to give you an out if your spouse is professionally relocated or if your mother’s hypothetical illness worsens or if you get an offer from an East Coast employer or if you leave the business. These are all things to consider as you decide whether to consider making a two to three year commitment.

Non-Competition: You should expect to see a non-compete provision in any broadcast employment agreement you sign, even if it is for part-time work. In practice, these provisions prevent you from going to a competitor in the same market. While they are always operative DURING the term of your agreement, their power is the fact that they SURVIVE the termination of your agreement. Typically, an on-air reporter may sign a non-compete that precludes him from going to work for a competitor for six months after the end of his employment. Television lore is rife with stories about reporters who “cross the street” after their contracts are up and are made to “wait out their non-competes.”

You should know that non-compete agreements, formally called restrictive covenants, are often disputed under state law in different industries. Courts try to figure out whether they are reasonable limitations on time and geography, while balancing the right of an individual to earn a living with that individual’s possession of proprietary station knowledge (and the risk they will take it across the street). You can read more about them elsewhere on this site. Simply put, an unreasonable non-compete is likely not enforceable in a court of law, but the question of reasonableness is one for the court to measure. So, one party has to take it to court to enforce it or for a declaratory judgment that it is unenforceable. The employees cannot typically afford lawyers to do this and stations rarely sue to enforce. These provisions nevertheless have a chilling effect. Competitors are often rightfully leery about messing with job candidates from across the street who have non-compete agreements. Usually, when disputes arise over these provisions, they are therefore resolved informally between station and employee (via settlement).

Regardless, you need to pay close attention to the non-compete in your employment agreement. You need to know what it means. If you are working in a city you love, but which only has three television stations, your non-compete will affect your ability to leverage yourself with your current employer because they know you cannot easily cross the street. Additionally, many non-competes are drafted to survive the termination of an employment agreement EVEN IF YOU ARE TERMINATED. In other words, the station can decide it does not want you anymore and can, simultaneously, prevent you from going to a competitor. Again, this is a murky area of the law; ultimately, a court will have to decide if such a restriction is “reasonable” in light of the circumstances at play.

Conflict resolution/Choice of Law: Briefly, this is a provision that usually falls at the end of your employment contract which seeks to control how the parties manage disputes in the event of a breach, or a termination, etc. The basic provision will say that all disputes should be tried by a court of law in the state where the station sits. I have also seen provisions which designate the state where the corporate parent is located (which will certainly inconvience the employee). Imagine if you feel you’ve been retaliated against in Georgia, but this provision says you can only sue in an Illinois state court. Increasingly too, employment contracts include arbitration provisions, which basically prevent you from suing all together. Instead, you have to go through an arbitral procedure, which can be expensive and slow, and which might favor the employer.

This is generally non-negotiable and typically part of a station group’s boilerplate employment agreement. You should, nevertheless, know what your agreement will allow you to do if a problem arises.

What happens at the end: Obviously, your contract is going to have an expiration date. This is the end of the “Term.” Some agreements will go into detail about what happens after that point. Do you have to give notice even if your contract is set to automatically expire? Will it automatically renew if you do not? Some contracts provide for short-term continuation agreements and some provide for automatic year-to-year renewals. Some companies also retain a right of “last refusal” in the event you get an offer from a new employer at the end of your term with the first employer. You must be sensitive to this before the critical time comes, so that you know how to comply and how to accurately represent your availability to your next potential employer.

Conclusion: I recognize that the jobs are few and the candidates are many. There is a legal concept that envisions agreements such as these, particularly where the effect is to deprive the employee of any real bargaining power, where you feel you have no choice but to accept the deal (to “take it or leave it”). These are called “contracts of adhesion” and, unfortunately, they comprise a large part of the dealing in this industry. If you are mindful about the various moving parts however, and if you can learn to negotiate without overreaching, you can turn an unreasonable agreement into something tolerable and even beneficial.

Earlier this year, an Arkansas sports reporter/weekend anchor sued his current employer, Gannett-owned KTHV alleging, among other things, violations of Title VII and the Arkansas Civil Rights Act, as well as sundry other contract causes of action. All of the separate claims derive from allegations of racial discrimination, even the contract claims.

You can read the Complaint here. The Plaintiff attached a copy of his EEOC charge, as well as a 1999 suit filed against Gannett by another ostensibly aggrieved former reporter which appears to have been settled.  (Note:  Arkansas is a part of the 8th Circuit Court of Appeals.  This case was filed in federal court in Little Rock, Arkansas).  Also, while originally filed as a class action, the suit has been amended to name only the individual plaintiff.

To thumbnail: Plaintiff is an African-American male who was hired in 2003 as a producer/reporter and alleges that management promised that he would be promoted, over time, to the number one sports position. I gather from the pleadings that there is no writing that confirms this. Plaintiff claims Station continued to make promises to him, throughout his employment, that he would be promoted. Plaintiff claims that, while at KTHV, he was offered more lucrative opportunities on two separate occasions in larger markets, by WEWS (Cleveland) and KPNX (Phoenix); in the first instance, he claims he turned the position down in reliance on KTHV’s promises to promote him, and in the second instance, he claims KPNX elected not to hire him because of adverse remarks made by Station management to KPNX management.

Needless to say, he was never promoted to the number one sports position at KTHV.

As part of his case, Plaintiff alleges a number of different things about Gannett. He alleges that Gannett has an all-white corporate board, generally all-white management, favors all-white anchors on its newscasts and, most importantly, justifies the appointment of all white anchors through the use of “subjective criteria” like focus groups and “corporate restructuring reasoning”, etc. He further alleges that there is no documentation indicating a “standardization” of the appointment and promotion process.

I do not know anything about the merit of his claims or the composition of Gannett’s corporate structure or whether there is a pattern or practice of discrimination in favor of white employees. This is not a commentary on the merits of this lawsuit.

I am posting about it here because the following points are interesting to me and are worth noting:

1. The employee filed his EEOC charge and filed suit while he was STILL employed at the station. As of the time of posting, his bio is not featured on the station web site.  I have no information as to why he is off the site or whether he is still employed with KTHV. In the broadcast industry though, it is unusual for employees to sue their employers during the course of their employment. The industry is small and journalists worry about alienating themselves.  On the other hand, if they terminated him after his filing of an EEOC charge, they would be exposed to liability for retaliation under Title VII.
2. The language of the Complaint itself seems to weave between wanting to accuse the station and wanting to accuse the ownership group.  This vacillation highlights important strategic questions associated with these suits.  Who do we sue?  The station or the whole company?  Although Gannett is the named Defendant, the allegations seem generally focused on management at the Little Rock station.  Ultimately, this is a suit against Gannett and Gannett will have to participate in discovery. Keep in mind that the question of whether Gannett discriminates may be different if you look at the station in isolation, as opposed to looking at how Gannett does business at all of its properties. Obviously, each side may feel differently – and may argue differently – about the proper scope of the litigation.
3. Finally, the issue of how a television station hires and promotes is still a sticky one, in the eighth circuit, AND beyond.  This case really highlights that, and is the reason I chose to feature it here.

Unless you have “disparate treatment” (open express statements or incidences of discrimination), a plaintiff in one of these cases has to try to prove what is called “disparate impact.”  Essentially, this means that while an employer’s policies may be racially neutral on their face, those policies or the conduct of management may have a discriminatory effect.  These cases are obviously harder to prove, and are typically reliant on circumstantial evidence (like, for example, the fact that most or all of a station’s anchors happen to be white).

To bring one of these cases, an employee has to be able to prove certain basic facts.  That gets the employee in the door.  The burden then shifts to the employer.  If an employer can show that its decision to not promote a particular individual is supported by a “legitimate, non-discriminatory business purpose” and the employee cannot disprove that, usually, the employer can prevail.

But how does a TV station prove that its decision was not discriminatory?  Usually, that station’s lawyers provide the employee’s personnel file which, ideally, is rife with documented policy violations.  In this case, Plaintiff seems to believe that Gannett is going to say that it did not promote him because of focus group data, but that this data is really a “pretext” for racial animus.  Pretext is a legal term of art.  In essence, the Plaintiff needs to show that the station’s explanations for not giving him the job he wanted are bogus.

The problem in television is that management decisions to put people on the air are often based on ratings, research and focus group data.  More than many other industries, these ostensibly “objective” measurements really do have “subjective” values at their core.

The leading case on television discrimination happens to be an 8th Circuit case called Craft v. Metromedia, Inc.  Although not entirely on point, the Craft case shows that courts seem to understand the subjective nature of television staffing. Among other things, the Craft court was considering a sex-related discrimination claim, wherein Christine Craft alleged the station’s “standards” (dress, make-up, hair, etc.) for on-air personnel were stricter and more strictly enforced as to females than as to males. The 8th Circuit gave stations some wiggle-room in its opinion on this “grooming” issue:

 Courts have recognized that the appearance of a company’s employees may contribute greatly to the company’s image and success with the public and thus that a reasonable dress or grooming code is a proper management prerogative. Evidence showed a particular concern with appearance in television; the district court stated that reasonable appearance requirements were “obviously critical” to KMBC’s economic well-being; and even Craft admitted she recognized that television was a visual medium and that on-air personnel would need to wear appropriate clothes and makeup. While we believe the record shows an overemphasis by KMBC on appearance, we are not the proper forum in which to debate the relationship between newsgathering and dissemination and considerations of appearance and presentation—i.e., questions of substance versus image—in television journalism. The record does not leave us with the “definite and firm conviction” that the district court erred or adopted an impermissible view of the evidence when it concluded that KMBC’s appearance standards were shaped only by neutral professional and technical considerations and not by any stereotypical notions of female roles and images.

Craft v. Metromedia, Inc., 766 F.2d 1205, 1215-16 (8th Cir. 1985)(internal citation omitted).

So, on the issue of “grooming,” the 8th Circuit seems to acknowledge that stations need to accommodate their viewers’ differing tastes, but stops just short of affirmatively allowing different rules for the different sexes.

In fact, it is a fairly well-recognized rule in the area of employment discrimination, that “customer preference” is not a defense to a claim of discrimination. The Craft case acknowledges this:

 Craft’s argument is that these differing standards as to females reflect customer preferences, which a number of cases have held cannot justify discriminatory practices.

Craft v. Metromedia, Inc.. 766 F.2d at 1214-15.

Think about what that means in this context. A television station can probably not blame its viewers for discriminatory staffing decisions (i.e., “we are a business and our viewers do not like to get their news from African-Americans.”).

Here’s another 8th Circuit analysis of the use of “customer preference” as a defense:

 Although this Circuit has not directly addressed customer preference as a business justification for policies having a disparate impact on a protected class, cases from other circuits have not looked favorably on this kind of evidence. See Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388–89 (5th Cir.) (customer preference may only be taken into account when it goes to a matter affecting the company’s ability to perform the primary necessary function or service it offers, rather than a tangential aspect of that service or function), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir.1982) (holding that customer preference for slim female flight attendants did not justify a discriminatory policy where weight was unrelated to job performance), cert. denied, 460 U.S. 1074, 103 S.Ct. 1534, 75 L.Ed.2d 954 (1983). The existence of a beard on the face of a delivery man does not affect in any manner Domino’s ability to make or deliver pizzas to their customers. Customer preference, which is at best weakly shown by Domino’s survey, is clearly not a colorable business justification defense in this case. Significantly, the survey makes no showing that customers would order less pizza in the absence of a strictly enforced no-beard rule.

Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795, 799 (8th Cir. 1993).

 So, what does this all mean?

First, you should be able to tell that the law is still a little wobbly on what a station can use as a viable defense to a discrimination claim.  The best defense is always going to be that a decision was race-neutral, that it was performance-based and that the employee had multiple opportunities to improve his or her position but suffered an adverse employment action as a result of progressive discipline.

It will not help if, as Plaintiff here alleges, Gannett’s corporate and station management structures are dominated by white employees and if most of Gannett’s anchors across the country are white.  If this case is not settled, then discovery will likely focus on Gannett’s composition across the company.

Second, if, in this case, Gannett does in fact intend to rely on focus group data and on “corporate restructuring reasoning”, as Plaintiff seems to believe, the Court will have to drill down on the focus group testing to determine if the sampling and the questions are themselves in some way discriminatory.  Because “customer preference” is not a defense, the Court will have to determine if the customer testing, the focus groups, are inherently racist or discriminatory.  To win on what appears to be his primary theory, Plaintiff will have to show that Station’s focus group testing was not race-neutral, but that the sampling and the questions were tainted with racial animus.  Moreover, he will have to show that Gannett consistently deployed this animus at its stations across the company.

Again, I reference this case because it is current and broadcast-related, and because it gives me an opportunity to discuss some of the nuances of the law in this area.  I cannot, and would not, speak to the merits of an individual pending case, other than to point out that these cases create significant challenges for both sides.

Brian Stelter of CNN’s Reliable Sources did an excellent segment today, reviewing the congressional hearings this week involving the proposed merger between Time Warner Cable and Comcast.

You can watch the segment here.

The segment concludes with an interview with Al Franken, but I think the highlight of the segment is the packaged content, wherein Stelter reveals that “every one of the 18 members of the committee has gotten cash donations from Comcast at some point during the last decade.”

Arstechnica has a piece on this too:

But just how many politicians have accepted money from Comcast’s political arm? In the case of the Senate Judiciary Committee, which held the first congressional hearing on the Comcast/TWC merger yesterday, the answer is all of them.

Sen. Chuck Schumer (D-NY) led the way with $35,000 from the Comcast federal political action committee (PAC) between 2009 and 2014, Sen. Patrick Leahy (D-VT) received $32,500, and Sen. Orrin Hatch (R-UT) received $30,000. These figures are the combined contributions from Comcast to the senators’ campaign and leadership committees. (Schumer has recused himself from the merger hearings because his brother, a lawyer, worked on the deal.)

A Houston news director took a fantastic and progressive position last week that directly impacts the dynamic between reporter and producer/news manager.  Not only is it a fundamentally sound newsroom policy, but it resolves the ambiguity that I have seen manifest itself in newsrooms so many times.  In short, this particular news director has banned reporters from knocking on the doors of individuals who have been identified as criminal suspects.  More interestingly to me, he has prohibited producers and other newsroom managers from instructing reporters to take this action.

I first read about this on Newsblues.com yesterday (Monday).  That site is membership driven; I am a member.  Because the content is behind a paywall however, I have sourced the background and substance elsewhere.

Earlier this year, one of KTRK‘s reporters was investigating an individual suspected in an alleged sexual assault.  The man pulled a gun on the reporter (Demond Fernandez) and threatened to shoot him.   Last week, in an unrelated incident, a woman randomly opened fire at the station from its parking lot.  No one was injured in either incident.

This week, KTRK News Director David Strickland sent the following memo to staff:

I know this will come off as opportunistic in the wake of today but I’ll allow my vanity to take the hit.

Since the Demond “knock on the door gun incident” from earlier this year, Don Kobos and I have been discussing the merits of knocking on doors of crime suspects. In short, we just don’t see the need to do it as the risk to reward ratio does not justify it. It’s just a sound-bite.

From this point forward reporters are not to go to a suspect’s house and knock on the door seeking comment. Producers and Managers are prohibited from ordering reporters and photographers from this type of news gathering.

As for other stories not involving a suspect, if the reporter or photographer thinks there is an editorial need to cold call knock on someone’s door they must get a manager’s permission first.

I know there are always circumstances that will frustrate this rule. In those cases, please discuss this with a manager and we will figure it all out.

It’s just not worth getting someone hurt over a sound-bite.

I’m sorry for not sending this out quicker.

This is a clear, unequivocal policy that directly addresses the exposure KTRK’s people in the field face on a regular basis.  I am told that the station places a premium on staff safety and participates in other safety training exercises on a regular basis.

I was particularly intrigued by this story, and the memo, because it is commonplace for reporters, photographers and meteorologists to be dispatched into “harm’s way” to cover a story.  In fact, news crews who do this are routinely praised for their “courage.”  Sometimes that means doing live shots in dangerous neighborhoods where homicides have occurred.  Sometimes it means driving a satellite truck toward a hurricane, instead of in the opposite direction.  The field crew often fears for its safety but worries about resisting the direction from the producer (and “getting in trouble”).  This tension between reporter and producer (or manager) pops up from time to time in every newsroom in the country.

At least at KTRK, reporters now know that they may refuse these particular assignments without fear of adverse employment consequences.  What I particularly like about the memo is its carve-out, or acknowledgement, that there will always be exceptions to the rule, but that they will be agreed-upon exceptions.

This may seem insignificant to those who have not been in these situations; it is anything but.  Non-contract employees work at the will of their employer and, with few exceptions, may be terminated for any reason at all.  Even contract employees working in newsrooms have often agreed to contract language that requires them to generally comply with the directions given them by their employers.

In Kentucky, a district court relied on similar language when it found that an at-will employee who failed to post a web story had violated a newsroom policy requiring employees to “[p]romptly and in good faith comply with all directions, requests, requirements, rules and regulations made by Employer in the conduct of its business” and to “perform such services as Employer, in its exclusive discretion, shall designate….” Jerry Sander v. Gray Television Group, Inc., 2010 WL 3781639 (E.D.Ky. 2010).

Although this Kentucky case relies on facts that are only remotely analogous, it should illustrate the conflict that must arise between every newsroom employee and his or her immediate manager.  Because one’s perception of danger is ultimately a subjective thing, newsroom employees risk discipline when they refuse assignments, no matter the reason.

As an aside, this sort of a policy is not likely solely designed to limit a station’s legal liability; it is more humane than that.  After all, many states have workman’s compensation statutes that limit an employer’s civil liability for on-the-job injuries.  The effect of these statutes?  No matter how badly a newsroom employee is injured on the job, his recovery against his employer is capped at the state maximum.  In Tennessee, where private employers are required to carry WC insurance for example, you may be limited to recovering your medical expenses and “temporary disability benefits.” (2/3 of average weekly earnings during 52 weeks prior to injury).  In Texas, WC is optional, but for those private employers who participate, their liability is also effectively “capped”.

In other words, this message to KTRK’s staff does more than just limit the station’s liability exposure.  It empowers field crews to be safe without fear of reprisal and it sends a message to staff that their safety is more important than the soundbyte.

Photo source: NY Daily News

A New York City Supreme Court judge granted Geraldo Rivera’s Motion to Dismiss a complaint filed against him by William Morris Endeavor Entertainment, LLC, a national talent agency.  According to the Complaint, which you can read here, Rivera stopped paying his ten percent (10%) commissions to William Morris in 2010.  The agency sued for breach of contract, unjust enrichment and quantum meruit.

Rivera originally hired William Morris by letter agreement.  You can read that here.

According to the pleadings, a series of renewals occurred, also by letter agreement, and were accompanied by boilerplate AFTRA agreements.  You can read the most recent one of those here.  Rivera claims he stopped paying because he believed his agreement was with a particular agent and that he did not need to pay the agency once that particular agent was no longer there.

The dispute centered around the existence of memorialized agreements and their express language.

Among the reasons for granting the dismissal is New York’s Statute of Frauds, which requires that agreements contemplating performance over a time period exceeding a year must be in writing.  You may read the Order here.  It explains the factual and procedural background of the case and is an interesting read.

According to the NY Daily News:

“This is a body blow to how Hollywood does business,” Rivera said. “It deals a blow to evil agents who wanted money for work they never did.”

The Florida news organization that sued a county clerk over excessive duplication fees has evidently prevailed.

Excerpts from the Watchdog City Press:

Brock had argued in court filings that as Clerk of Courts he is subject to Florida statute 28.24 and that he is allowed to charge up to $1 per page for records in his possession.

…

Judge Hardt wrote: “Under the facts in this case there is no conflict between Chapter 28 which governs the Clerk and Chapter 119 which governs access to public records. For documents stored in an electronic format, the Legislature has mandated that the authorized fee which may be charged by the Clerk for downloading the data on a computer disk may not exceed the cost of the disk. The cost of a computer disk does not exceed $1.00.

…

After Edwards published critical stories on Feb. 11, Brock charged $556, for 556 pages for electronic records on 2 CDs, saying as Clerk he is allowed to charge $1 per page for all records in his possession. Edwards filed the lawsuit challenging the fees on Feb. 25.

Read the entire article here.

Multiple media have noted Senator Chuck Schumer’s confidence that a federal shield law (the first of its kind), the “Free Flow of Information Act of 2013”, will see enactment this year.

You can read the text of the bill here.

From Politico:

“It’s very, very likely the Senate will pass a bill this year,” Schumer said. “Just about every Democrat is for the bill. … We have five Republicans on record being for it, three of them are co-sponsors.”

But there are at least three substantial challenges to the bill’s efficacy. The first, a broad national security exemption, has received the most attention; it also might be an unavoidable feature of any politically palatable media shield. The second is that the bill normalizes the process of subpoenaing reporter records and, worse, displaces accountability from within the Executive across the Judiciary, Congress, and a Fourth Estate that has enthusiastically endorsed judicial review of subpoenas. This cost, identified by Dave Pozen, suggests that reporters might be better off with no shield at all. The third challenge is the massive loophole the bill leaves for acquiring reporter records via third-party service providers.

News organizations around the country have different approaches to handling comments on their web sites.  One question that has long plagued news managers, and which still informs corporate policy-making, is whether moderating the comments posted on your site by third-parties increases your organization’s civil liability for the damage caused by those comments.  The short answer is that it usually does not.

Techdirt posted a strongly worded reminder today about the broad immunity granted to web site owners and the fact that modifying comments does not remove that immunity.  You can read the Techdirt piece here and link internally to their own excellent coverage and analysis of this issue in general.

Simply put, Section 230 of the Communications Decency Act creates broad immunity for a web publisher for the comments posted by third parties.  The entire statue appears here, but here is the relevant language from subsection (c):

(c) Protection for “good samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of–

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

The bottom line is that the removal of offensive comments or the organization of third-party content on your site probably does not take your immunity away.  Techdirt gets to the heart of it, but I thought I would add some case law to flesh out the reasoning and to highlight some parameters that are still being shaped:

First, here is the Fourth Circuit on the reason Section 230 was enacted:

Congress enacted § 230 to remove the disincentives to self regulation created by the Stratton Oakmont decision. Under that court’s holding, computer service providers who regulated the dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher. Fearing that the specter of liability would therefore deter service providers from blocking and screening offensive material, Congress enacted § 230’s broad immunity “to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material.” 47 U.S.C. § 230(b)(4). In line with this purpose, § 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.

Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997)

Now, some food for thought:

A District Court in Kentucky, recognizing that the Sixth Circuit has not yet weighed in on this, held that “a service provider is ‘responsible’ for the development of offensive content only if it in some way specifically encourages the development of what is offensive about the content.”  Jones v. Dirty World Entm’t Recordings, LLC, 840 F. Supp. 2d 1008, 1010-11 (E.D. Ky. 2012).

This case is currently on appeal at the Sixth Circuit.

The reasoning of the District Court judge though is interesting.  This Kentucky federal court identified a number of examples where the immunity ostensibly goes away.  In one example, a web host lost its immunity because it “required subscribers to the site as prospective landlords or tenants to include information that was illegal under the Fair Housing Act.”  In another example, “the operator of a web site that sold various personal data, including telephone records was violating certain federal confidentiality regulations.”  The most interesting part of this opinion is the analysis of the case itself, which involved allegedly defamatory remarks about a female high school teacher posted on a web site called thedirty.com.

This Court holds that, under the principles of Roommates.com and Accusearch, the defendants here, through the activities of defendant Richie, “specifically encourage development of what is offensive about the content” of “the dirty.com” web site.

  First, the name of the site in and of itself encourages the posting only of “dirt,” that is material which is potentially defamatory or an invasion of the subject’s privacy. Richie’s activities as described in his deposition also require the conclusion that he “specifically develops what is offensive” about the content of the site.

Richie acts as editor of the site and selects a small percentage of submissions to be posted. He adds a “tagline.”  He reviews the postings but does not verify their accuracy.  If someone objects to a posting, he decides if it should be removed.  It is undisputed that Richie refused to remove the postings about plaintiff that are alleged to be defamatory or an invasion of privacy.

  Most significantly, Richie adds his own comments to many postings, including several of those concerning the plaintiff. In these comments, he refers to “the fans of the site” as “the Dirty Army.”   He also adds his own opinions as to what he thinks of postings.  Richie’s goal in establishing the site was to bring reality TV to the Internet.   He wants everybody to log on to “the dirty.com” and check it out. In his opinion, “you can say whatever you want on the internet.”  One of Richie’s comments posted concerning the plaintiff was “Why are all high school teachers freaks in the sack,” which a jury could certainly interpret as adopting the preceding allegedly defamatory comments concerning her alleged sexual activities. When asked about this comment, he stated: “[i]t was my opinion, you know, watching the news and seeing all these teachers sleeping with their students and, you know, just my opinion on all teachers just from, like, what I see in the media.” 

Richie also posted his own comment addressed directly to the plaintiff, stating in part: “If you know the truth, then why do you care? With all the media attention this is only going to get worse for you … You dug your own grave here, Sarah.”   He further posted: “I think they all need to be kicked off [the Bengals’ cheerleading squad] and the Cincinnati Bengals should start over. Note to self. Never try to battle the Dirty Army. Nik.”  And, perhaps most significantly: “I love how the Dirty Army has war mentality. Why go after one ugly cheerleader when you can go after all the brown baggers.”

This Court holds by reason of the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie, the defendants have specifically encouraged development of what is offensive about the content of the site. One could hardly be more encouraging of the posting of such content than by saying to one’s fans (known not coincidentally as “the Dirty Army”): “I love how the Dirty Army has war mentality.”

Jones v. Dirty World Entm’t Recordings, LLC, 840 F. Supp. 2d 1008, 1012-13 (E.D. Ky. 2012)

Remember, this case is on appeal and a number of stakeholders have filed briefs to the Court. It is being closely watched.

What is the takeaway if you manage a news site?  The general rule still controls:  you are probably safe from liability even if you manage or modify the comments posted by your users, readers or viewers.  This case presents a warning though, that at least one court has tried to remove that immunity when the web site “in some way specifically encourages the development of what is offensive about the content.”