RECENT FCC DECISIONS SIGNAL HEIGHTENED
ENFORCEMENT OF EEO RULES AND RENEWED EMPHASIS ON BROAD RECRUITMENT FOR ALL
FULL-TIME VACANCIES
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The FCC recently issued two
Notices of Apparent Liability (“NALs”) that reiterate the importance of
complying with the FCC’s EEO rules, particularly the requirement to recruit
widely for every full-time job opening. The NALs imposed forfeitures of
$8,000 and $20,000 and EEO reporting conditions for three years on the
affected broadcasters. In light of the upcoming license renewal
process, which will include FCC review of each station’s two most recent EEO
public file reports, and recent comments from FCC staff regarding a potential
increase in the number of EEO audits this year, broadcasters are encouraged
to ensure that they are complying with the EEO rules in all respects. In the NALs, the FCC
concluded that the broadcasters failed to properly recruit for full-time
vacancies when they relied exclusively on walk-ins, referrals,
word-of-mouth, general on-air announcements promoting careers in broadcasting
or at the station, job-specific on-air announcements, and/or Internet
websites. According to the FCC, exclusive use of these types of
recruitment sources did not fulfill the broadcaster’s requirement to widely
recruit across its community for each full-time job vacancy. One of the NALs also
addressed the use of generic on-air announcements, which many broadcasters
use to recruit for frequently recurring vacancies (e.g., account
executive positions). The FCC staff stated that, while broadcasters are
not prohibited from using generic ads, such ads do not satisfy the requirement
to recruit for each specific full-time vacancy (though the FCC has
separately held that resumes collected by vacancy-specific recruitment within
the prior three months are not “stale” and may be used to fill other
vacancies for substantially the same position). Significantly, the FCC
imposed a substantial $8,000 forfeiture where the
broadcaster failed to fully recruit for only 6 of the 24 vacancies filled
during the reporting period. The NALs also provided the
following guidance for broadcasters:
The NALs also illustrate
that poor or incomplete EEO recordkeeping can result in multiple EEO rule
violations, as well as violations of other FCC requirements. In one
case, a broadcaster that failed to maintain records of the number of
interviewees and their respective recruitment sources was found to have
violated: (i) the EEO recordkeeping requirements; (ii) the
EEO public file report requirement (because the missing information is
required to be included within that report); and (iii) the public
inspection file rule (because the failure to include the missing information
rendered the report incomplete). Moreover, consistent with past
practice, the FCC considered the various EEO rule violations cited in the
NALs as evidence that the broadcasters failed to engage in the required
self-assessment of their EEO recruitment programs, which constitute separate
violations of the EEO rules. In addition to assessing
forfeitures, the FCC imposed special reporting conditions on the affected
broadcasters. Those broadcasters are now required to submit their EEO public file reports to the FCC annually for the next three
years. In addition, the broadcasters are required to submit additional
information demonstrating compliance with the EEO rules, including dated
copies of every advertisement, letter, email, or other communication issued
that announces full-time vacancies at the employment units. Recommendations The NALs reflect the FCC’s
heightened enforcement of its EEO rules and demonstrate the penalties that
can be imposed when rule violations are found. We therefore recommend that
you carefully examine your EEO program for compliance with the EEO rules,
paying particular attention to these requirements: Broad Outreach to a
Variety of Recruitment Sources, Including Non-Internet and Non-Station
Sources. While the FCC does not require
the use of a specific number of recruitment sources, if a source or sources,
collectively, cannot reasonably be expected to reach the station’s entire
community, a broadcaster may be found to be in violation of the FCC’s EEO
rules. In practice, this means that a station that only posts notices
of job vacancies internally and on Internet websites, or relies exclusively
on walk-ins, referrals, word-of-mouth, general on-air announcements promoting
careers in broadcasting or at the station, or job-specific on-air
announcements, will not be deemed to have engaged in the required broad EEO
outreach. Regular Self-Assessment. The EEO rules require that each employment unit
periodically assess its recruitment program to ensure that it is effective in
achieving broad EEO outreach, and to address any problems found as a result
of that assessment. Where a broadcaster fails to comply with any of the
FCC’s EEO requirements, the FCC may conclude the licensee separately failed
to adequately assess its recruitment program. Recordkeeping. Broadcasters should retain copies of all records
documenting compliance with each aspect of the employment unit’s EEO
program. Specifically, broadcasters should retain notices and other
communications relating to job vacancy announcements and should carefully
record the number of interviewees for each vacancy by recruitment
source. If broadcasters do not know the recruitment source for an
interviewee, they should ask for that information during the interview. Inclusion of All Required
Information in EEO Public File Report.
Broadcasters are required to include a list of all full-time vacancies filled
during the reporting period, identified by job title, the number of
interviewees, and the recruitment source of interviewees. If broadcasters
cannot provide this information due to inadequate recordkeeping, they may be
subject to forfeitures for violating the EEO public file report requirements,
the public inspection file requirements, the EEO recordkeeping requirements,
and the regular EEO program self-assessment requirement (risking a possible
compounded forfeiture). If you have any questions
concerning these decisions or compliance with the FCC’s EEO rules, please
contact your primary attorney in our office. January 19, 2011 |
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This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advice. We would be pleased to provide additional details or advice about specific situations if desired. Copyright © 2010, Lerman Senter PLLC 2000 K Street NW,
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