EEO: Web-only, Word-of-Mouth-only Recruitment NOT Enough

Posted on December 31, 2011 by Peter Tannenwald

The Internet may be the go-to place for job-seekers, but the FCC still insists on an Old School approach when it comes to broadcast jobs and EEO.

Despite the fact that the Commission has itself acknowledged, repeatedly, that the Internet is an important, maybe even “critical”, resource for job-seekers, broadcasters with jobs to offer had better not rely on the Internet alone when recruiting for those jobs. If they do, they’re looking at a fine that could run into five digits. Ask a couple of licensees – one in Virginia, one in South Carolina – who just found out the hard way.

The FCC has long required broadcast employment units with five or more full-time employees to recruit broadly for minority and female applicants for all job openings. A report of recruitment efforts, including the referral sources that are notified of openings, must be placed in the public file of all stations in such employment units every year; they must also be posted on the stations’ websites (if they have websites). At the middle of the license term and at renewal time, those employment units must submit reports on their EEO efforts to the Commission. And each year the Commission also conducts random audits of EEO performance.

We have cautioned clients for at least a couple of years that the FCC insists on a broad spectrum of recruitment sources. The classic “word-of-mouth” approach and “referrals from friends” are not enough. And as we wrote just a year ago, the FCC has also cautioned that Internet-based recruitment cannot be relied on alone. (Irony alert: the fact that some businesses accept job applications only via the Internet has been touted by the Commission as a justification for its National Broadband Plan, which includes repurposing TV broadcast spectrum for wireless broadband.)

In the two recent cases (released on the last business day of 2011), the FCC nicked two station groups for $8,000 and $12,000 for inadequate dissemination of recruitment notices for some of their openings. For some, but not all, of their openings the groups had relied on Internet and word-of-mouth to spread the word. Not enough, the Commission announced. Its FCC’s words are direct and speak for themselves (although we’ve highlighted a particularly noteworthy sentence below):

The Licensee’s reliance on non-public sources such as word-of-mouth referrals and its own employee board, did not constitute sufficient recruitment as contemplated under the Commission’s rules, which require public outreach. …While the Commission does not require the use of a specific number of recruitment sources, if a source or sources cannot reasonably be expected, collectively, to reach the entire community, as here, a licensee may be found in noncompliance with the Commission’s EEO Rule. Further, the Commission’s interpretation of the EEO Rule does not allow a licensee to recruit solely from Internet sources to meet the requirement to widely disseminate information concerning the vacancy.   

We have been told over and over again by clients that the Internet is just about the only recruitment source that produces any results and that mailing notices of vacancies to a large list of community organizations is an exercise in futility.  That may be so in the Real World, but on Planet FCC things are apparently different – so the wise licensee will continue to keep a good supply of paper and postage stamps on hand.

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Media Bureau Cracks The EEO Whip

Posted on January 3, 2011 by Peter Tannenwald

Bureau whacks two licensees for $8K and $20K for inadequate recruitment and record-keeping

The Media Bureau celebrated the end of 2010 (or maybe the arrival of 2011) by serving warning that, for every single full-time job opening – no exceptions – broadcasters must notify multiple recruitment sources that are likely to refer applicants from diverse backgrounds. Exclusive reliance on over-the-air announcements and Internet postings will not do the trick.  Neither will reliance on word-of-mouth or unsolicited walk-ins standing alone.  And, of course, all notification activities (and other recruitment minutiae) must be documented in the annual EEO report that stations place in their public inspection file on the anniversary of their renewal application filing.

Happy New Year!

This celebratory heads-up was delivered in Notices of Apparent Liability (NAL) issued to two separate broadcast groups late on December 29.

In one case involving several stations in small Oregon communities, the licensee apparently failed to include its annual EEO public file reports for 2004 and 2005 with its 2005 renewal application. The Bureau wrote to the licensee, asking for those two reports – and oh, by the way, while you’re at it, please send along reports for 2006, 2007 and 2008, too. (The Bureau didn’t get around to asking for any of these reports until 2009. Time, apparently, was not of the essence when it came to processing the 2005 renewal applications.) And although it didn’t ask for the 2009 report, Bureau staffers checked that report out anyway on the licensee’s website. (You do remember that you have to post your most recent annual report on your website, don’t you?)

The reports showed that there were 29 vacancies during the 2003-2009 period. For six the licensee relied only on “walk-in/mail-in” applicants. For another seven, it relied exclusively on postings on Internet websites. For 15, it relied strictly on over-the-air-announcements.  Conclusion? The licensee violated the EEO rule “because it failed to use recruitment sources sufficient to disseminate information concerning the vacancies as required”.  

The licensee also didn’t have records of (a) the number of people it interviewed for each opening or (b) the recruitment source from which each interviewee learned of the opening. (While not every applicant is willing to disclose where he or she learned of an opening, you must ask. This requirement applies only to applicants you interview, not all applicants.)

Total fine: $20,000 – $16K for failing to recruit properly, $1K for failing to keep required records, $2K for incompleteness of public file reports, and another $1K for failing to adequately analyze the effectiveness of recruitment efforts.

The second NAL involved a group of stations in small communities in Missouri picked in 2008 as part of the Commission’s random audit process. During the reporting periods ending in 2006 and 2007, the licensee had 24 vacancies. For three openings, it relied on walk-in applicants; and for one opening each it relied on, respectively, word-of-mouth, a business referral, and an employee referral. The licensee noted that it broadcast “generic recruitment ads that promote different careers in radio and working at [the licensee]”, even when there were no current openings, and walk-in applicants may apply because of these spots. The public file report in one year failed to list job titles of seven vacancies, classifying them as “other”.

Total fine: $8,000 – $5K for failing to recruit properly, $2K for incomplete public file reports, and $1K for inadequate analysis of its recruitment efforts.

Both licensees used on-air or Internet announcements to get the word out about employment opportunities. These recruitment methods are likely to reach a race- and gender-blind audience, and people who want to work at your station are likely to listen to your station. Indeed, we hear from broadcasters all the time that on-air and Internet announcements are the only methods that produce any results. By contrast, mass mailings to organizations supposedly able to spread the word reportedly do little but use up postage and paper.

But to the FCC, it doesn’t matter. You must publicize every full-time opening to a variety of specific sources. There is no requirement that any of these sources ever refer any job applicants (much less any qualified ones), although consistent non-response is supposed to be a reason to look for new sources. Remember as well that any recruitment source that affirmatively requests to be notified must receive notifications of all openings.

Particularly surprising here is the conclusion of the Media Bureau’s EEO enforcers that “reliance on Internet sources is inadequately broad recruitment”.  In view of the Commission’s rabid promotion of broadband as a panacea for just about every conceivable economic problem, it’s difficult to understand why the Media Bureau is pooh-poohing broadband and insisting instead on Last Century approaches which have historically proven ineffective.

No matter. We are headed into a new cycle of broadcast license renewals, which will require EEO showings from all non-exempt licensees. (See below for exemptions.) After an eight-year respite, some stations may have gotten a tad rusty on the EEO front. It’s important NOT to let that happen. When you file your renewal application, you will have to submit your two most recent EEO public file reports. So even if you work extra hard to make your latest report complete, you could still get caught with your pants down if the report from the year before fell short.

While not mentioned in last week’s cases, all non-exempt licensees must also undertake two or four (depending on staff and market size) EEO “initiatives” every two years, drawn from a list of activities set out in the EEO rule (47 C.F.R. Section 73.2080). If you haven’t read that section lately, it would be a very good idea to read it now.

(A note on exemptions. Employment units with not more than four full-time (i.e., at least 30 hours/week) employees are exempt from the EEO recruiting/reporting rules.  “Full-time” means at least 30 hours per week. Employees with a 20% or greater ownership interest in the licensee are not counted in determining staff size. There are no blanket exemptions for low power TV or noncommercial stations.  Radio stations with at least five but no more than ten full-time employees do not have to file a mid-term EEO report (Form 397) between license renewals, but they are still subject to other EEO recruitment and reporting obligations (including the annual public file report).  Stations with religious programming formats need not go through a full-scale recruitment process where a specific faith is a relevant qualification for a particular job, but they are still expected to reach out widely to reach qualified potential applicants for those jobs and must recruit fully for positions where faith is not a relevant qualification.)

[Blogmeister's Note: We have revised the first and eleventh paragraphs of this post to clarify that, at least for the time being, the notification requirement relates only to FULL-TIME positions.  Under the current rules, part-time openings (less than 30 hours per week) are not subject to the recruitment requirement.  However, the FCC at one time proposed to extend the requirement to part-time jobs and may do so in the future.]
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Parsing Form 397

Posted on August 31, 2010 by Anne Goodwin Crump

Which TV licensees have to file?

Recently, the Minority Media & Telecom Council asked the FCC to suspend enforcement of the EEO rules for three months. (You can read MMTC’s request here; alternatively, you can read our monthly Memo to Clients summary of the request here.) At this point, it’s anybody’s guess as to whether the FCC will grant MMTC’s request – although, frankly, if even MMTC is asking that EEO enforcement be suspended, the Commission really should be wondering what’s wrong with this picture.

But regardless of what the Commission eventually does, it might want to take this opportunity to clean up at least one aspect of its EEO “Broadcast Mid-Term Report” (FCC Form 397) that seems oddly and unnecessarily confusing, if not flat-out inconsistent.

Form 397 is a cute little three-page form. The first page calls on the reporting licensee to provide its name and contact information and identify the stations covered by the report. No real surprises there.

But on page two, Section I consists of the following single yes/no question:

Does your station employment unit employ fewer than five full-time employees, if television, or fewer than eleven full-time employees, if radio?

Not an overly complicated question. Then the form reads:

If yes, you do not have to file this form with the FCC. However, you have the option to complete the certification below, return the form to the FCC, and place a copy in your station(s) public file.

This last instruction raises an obvious question – i.e., who in his right mind would “opt” to file a form that the FCC specifically says does not have to be filed? – but that’s not the problem. Rather, the problem arises from the fact that the “filing instructions” located immediately above Section I include the following:

If a television station employment unit employs fewer than five full-time employees, only the first two pages of this report need be filed.

So does that mean that TV stations with fewer than five have to file a report (even if the report is limited to only two pages), or does it not have to file anything at all (unless, of course, it opts to)?

Oh, and did we mention that the underlying rule (47 C.F.R. §73.2080(f)(2)) provides that

The Commission will conduct a mid-term review of the employment practices of each broadcast television station and each radio station that is part of an employment unit of more than ten full-time employees four years following the station's most recent license expiration date as specified in §73.1020.

Let’s get this straight. If you’re a TV licensee with fewer than five full-timers, according to Form 397 either “you do not have to file this form” or “only the first two pages of this report need be filed”. Huh? And Section 73.2080(f)(2) isn’t much help in sorting this out, since that section could be read to say that mid-term reports are expected from TV stations with more than ten FT employees – even though the 2002 Report and Order adopting the rules makes reasonably clear (check out Paragraph 153) that the Commission intended to limit mid-term EEO reviews to TV stations with five or more FT employees.

There is at least one possible way (see “Suggested Solution”, below) to twist this regulatory Rubik’s cube to make all the seemingly incongruous parts look consistent, but really, would it be that hard for the FCC to take the time to articulate its requirements clearly and consistently in the first place? Sure, we know that the number of TV stations with fewer than five full-time employees may be limited, but is that any excuse for at-best-ambiguous-at-worst-hopelessly-inconsistent forms?

[Suggested Solution:

Step 1: Understand that Section 73.2080(f)(2)’s clause reading “that is part of an employment unit of more than ten full-time employees” refers only to the term “each radio station”, and not to “each broadcast television station”.  That reading is not absolutely dictated by the grammatical structure of the particular sentence in question, but it’s also not clearly foreclosed by it.

Step 2: Since “television station” in Section 73.2080(f)(2) is not modified by the “more than ten” clause (see Step 1), refer back to the prefatory language of Section 73.2080(f). That language limits the reach of that section (including its subsections, such as 73.2080(f)(2)) to employment units with “five or more persons in full-time positions, except where noted”. Thus, the term “television station” as it appears in 73.2080(f)(2) can be read to be limited to TV stations with five or more full-timers. That assumes, of course, that the “except where noted” phrase in the preface is intended to refer to – and except out – the “more than ten” clause in (f)(2). Again, that assumption is not absolutely dictated by the rules’s language, but it’s also not clearly foreclosed by it. 

Step 3:   Assume that the FCC really means it when it says (in Section I of Form 397) that TV licensees with fewer than five FT employees “do not have to file this form with the FCC”.

Step 4: Assume that, when the form’s instructions say that “only the first two pages of this report need be filed” by TV licensees with fewer than five FT employees, it really means that those pages need be filed only if the licensee chooses to go ahead and file a report even though it doesn’t have to.

End result: TV employment units with fewer than five full-time employees need not file any mid-term EEO reports.]
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Adventures in EEO-Land

Posted on July 9, 2009 by Harry Cole

Media Bureau hands out fines for re-hires, over-reliance on Internet recruitment

Following up on audits of the EEO performance of a number of broadcast licensees, the Media Bureau has dished out fines ranging from $3,000 to $12,000 to three licensees for various shortcomings. In addition to the fines, each of the three is also saddled with reporting requirements for the next three-four years – and if any of the stations happen to be sold in the meantime, the buyer will get stuck with the reporting chores. (Good luck explaining to the buyer exactly why he or she should bear that particular cross.) You can read the decisions here, here and here.      

As has been invariably the case for years, the “EEO” miscues at issue did not involve any actual, or even alleged, illegal discrimination. Rather, in each case the licensee failed to jump through various procedural hoops in just the right way. For example, one licensee failed to send out notices of vacancies to two organizations which had asked to be on its mailing list. It also neglected to “retain fully detailed documentation to support the data reported” in its annual EEO report in its public file. That’ll be $3,000, please – be sure to make the check payable to the FCC.

There’s more.

One of the licensees was taken to task for re-hiring a former employee to fill a vacancy without undertaking “sufficient recruitment” for that slot. While the Bureau’s decision provides virtually no description of the particular facts here, it seems strange that the Commission would not view re-hires as a permitted exception to the full-tilt-recruitment-uber-alles approach. After all, the licensee knows the former employee/re-hire candidate and is perfectly situated to know whether that candidate (who is presumably already familiar with the licensee’s operations) is suited for the job. 

Why then go through an elaborate recruitment dance if the result is, reasonably and legitimately, a foregone conclusion?  Don’t bother to try to answer that rhetorical question. (That’s kind of like when positions in government agencies are “posted” as if they’re really open for applications when, in fact, it’s understood by all concerned that the positions have already been filled.)   The fact of the matter is that, according to the Bureau, re-hires without “sufficient recruitment” can get you a $3,000 fine and, possibly, reporting conditions.  Again, just make that check payable to the FCC.

One element common to two of the cases was the fact that each licensee had, in its recruitment for at least one vacancy, relied solely (or at least primarily) on Internet web sites as recruitment sources. Bad idea. 

According to the Bureau, the Commission’s EEO policy “requires a licensee to recruit from non-Internet sources, in addition to any sources from the Internet, in order for its recruitment to sufficiently widely disseminate information concerning the vacancy.”

This neo-Luddite aversion to reliance on the Internet is a throw-back to 2002, when the Commission declined to permit such reliance. Back then, the FCC cautiously promised to “continue to monitor the viability of the Internet as a recruitment source” and to “consider whether future circumstances warranted a change”. Can we all agree that, in the intervening seven years, Internet accessibility has increased dramatically, as has the extent to which everybody – including the FCC itself – relies on the Internet to conduct routine, day-to-day business? (Any doubters out there are invited to go to the FCC’s “Forms” page and count the number of applications and reports that must be filed electronically.) Nevertheless, the Commission apparently doesn’t think that that dramatic increase is a “circumstance[ ] warrant[ing] a change” in its EEO policy. Go figure.

But if you really want to scratch your head, consider this. The Commission’s rules require that each licensee’s EEO public file report be posted on that licensee’s website. And the two guys that got whacked for over-reliance on the Internet? The reporting conditions that they are now subject to (for the next several years) specifically require them to demonstrate to the Commission, each year, that their EEO reports have been duly posted on the Internet.

Let’s get this straight: the Internet is so widespread that it is a matter of regulatory imperative that annual EEO reports must be posted there, but not widespread enough to give the Commission assurance that any interested – and motivated – prospective job applicant would be able to find out about job vacancies posted there. That doesn’t seem to make much sense -- but it’s not clear that sense is necessarily a factor here.

In any event, all broadcast licensees should be aware that the Commission’s EEO enforcement mechanism is still primed to lunge at the capillaries of procedural minutiae, rather than the jugular of actual discriminatory activity.
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