Reinstated workforce demographic reporting requirement and increased FCC enforcement of EEO rules against broadcasters call for increased focus on compliance

The Federal Communications Commission recently reinstated commercial and noncommercial television and radio broadcasters' obligation to annually report workforce composition data, including the gender, race, and ethnicity of their employees, effective June 3, 2024. (See the FCC Form 395-B section below.) This action came on the heels of the FCC's increased enforcement of its EEO rules against broadcasters for recruiting and recordkeeping violations. Given the Commission's heightened attention to broadcasters' EEO obligations, all radio and television broadcast licensees must focus on compliance with these rules.

We recommend a four-step approach to compliance. First, broadcasters should determine which of the FCC's EEO rules apply. Second, broadcasters should verify that they have implemented the FCC's three-pronged approach to EEO compliance – recruitment, notification, and menu options. Third, broadcasters must keep records necessary to demonstrate EEO compliance. Fourth, broadcasters must ensure that their public files are appropriately updated with EEO data.

In addition to day-to-day compliance, broadcasters must be prepared to respond to FCC enforcement measures as the Commission randomly audits approximately 5% of all licensees for EEO compliance each year. Failure to adhere to the Commission's EEO rules and filing requirements may result in the imposition of fines and/or other sanctions. This post provides both an overview of the FCC's EEO rules, guidance on the relevant requirements, and recommendations on how to best attain compliance.

Step 1: What Rules Apply to You?

General Anti-Discrimination Rules Apply to Everyone

All broadcast licensees, regardless of number of employees or location, are required to comply with the Commission's general anti-discrimination rule, which forbids any broadcaster from engaging in employment discrimination based on race, color, religion, national origin, or gender.[1]

Recruitment and Outreach: The "Five Full-Time Employees" Rule

The Commission's three-pronged approach to EEO compliance applies to broadcasters who have five or more full-time employees in their "employment unit." An employment unit is one or more stations in a single market that share at least one employee.

A full-time employee is a permanent employee who works 30 hours or more per week. If your employment unit has five or more full-time employees, you should proceed to Step 2 of this post. If your employment unit has fewer than five full-time employees, you must observe the general nondiscrimination rule, but you need not follow the Commission's recruitment, notification, and menu option requirements.

Step 2: The FCC's Three-Pronged Approach to EEO Compliance

Recruitment

Broadcasters with five or more full-time employees must recruit in compliance with FCC standards for all full-time vacancies, subject to a few exceptions detailed below. To satisfy this requirement, broadcasters must, for each vacancy, develop and use a recruitment source or list of recruitment sources sufficient to ensure wide dissemination of information about the job opening. The FCC has set forth the following guidelines regarding the use of recruitment sources and recruitment efforts:

1. The FCC does not dictate the number or types of recruitment sources that a broadcaster must use to satisfy this requirement. The rules require only that the source or sources used be reasonably calculated to reach the entire community.
2. A broadcaster may widely disseminate job listings through any combination of methods to ensure that the postings reach the entire community.
3. A broadcaster does not need to use the same recruitment sources for every hire.
4. The rules do not preclude the use of regional or national recruitment sources.
5. The FCC does not require that recruitment be targeted to specific groups within the community and indeed, under certain circumstances, it may be illegal to do so.
6. The Internet can be used as a broadcaster's sole recruitment source if the resulting applicant pool proves to be diverse. For example, advertising a job opening on Indeed.com or similar job recruiting websites may be sufficient.
7. Broadcasters may engage in joint recruitment efforts with unaffiliated broadcasters or community organizations in the market, if desired – e.g., job fairs.
8. Broadcasters may also use outside organizations for assistance in designing or implementing their recruitment efforts.

With respect to the broad outreach requirement, the FCC allows a licensee to define the relevant "community" in its good faith discretion. In making this determination, a broadcaster should assess: (1) the technical coverage of its station(s); (2) its marketing, promotional, and advertising practices; (3) the pertinent market definitions adopted by public agencies or commercial services; and (4) requests for notices of job vacancies from locally based community groups.

A broadcaster may be exempt from the recruiting requirement in four specific instances.

1. Exigent circumstances. A broadcaster need not recruit when there are "exigent circumstances" that require an immediate hire. The FCC has not enumerated the "exigent circumstances" that qualify for the exemption. However, the Commission created the exemption to respond to emergency circumstances that are difficult to anticipate. For instance, if a critical employee quits, and the business cannot function without filling the position immediately, the exigent circumstances exemption may apply. Moreover, the Commission's primary concern about the exemption's use is abuse. The Commission looks to see if the exigent circumstances exemption is being invoked to avoid a licensee's recruitment responsibilities. Thus, the FCC generally will not investigate whether the exemption was correctly invoked in an isolated instance, but it will investigate if the exemption is frequently invoked (i.e., whether the exemption is being used in bad faith). Accordingly, a broadcaster should claim exigent circumstances sparingly and only when emergency circumstances truly exist.

• Promotions. The second instance in which recruitment is not required occurs when an existing employee is promoted. However, internal promotions must be nondiscriminatory.
• Temporary hires. A broadcaster is not required to recruit when hiring full-time employees who will be employed for six months or less. A temporary employment that exceeds six months will be considered a full-time employment for purposes of the FCC's recruitment rules. Moreover, a temporary employee may not be promoted to a permanent position without recruitment unless the broadcaster recruited at the time the temporary hire was made.
• Interns. For purposes of the FCC's EEO rules, interns are deemed temporary hires or non-employee volunteers. Therefore, a broadcaster need not recruit to obtain interns. However, if the broadcaster later seeks to hire the intern for a permanent full-time position, recruitment will be required.

Notification

Broadcasters must provide notification of full-time job vacancies to organizations involved in assisting job seekers, upon request by such organizations. A valid request must provide the station employment unit with the organization's name, mailing address, email address (if it has one), telephone number, contact name, and the vacancy information requested (e.g., "engineering positions" or "all vacancies"). Such organizations are entitled to receive notice of any vacancies requested. The FCC expects broadcasters to make reasonable efforts to publicize vacancies, such as an on-air announcement or through a joint announcement by broadcasters or state broadcasters' associations. Notices could be included in press releases or newspaper ads, or posted on the company's website.

Menu Options

The recruitment and notification requirements discussed above explain what a broadcaster must do when it seeks to fill employment vacancies. Additionally, the FCC requires broadcasters to perform outreach initiatives to generally raise awareness about employment opportunities in the field of broadcasting. The goal of this requirement is to encourage members of the community who may be interested in a broadcasting career to acquire the skills necessary to qualify for employment. The FCC has developed 16 "menu options" from which broadcasters may choose to fulfill their outreach obligations. An employment unit that has between five and 10 employees or is located in a small market (population of less than 250,000) must complete two menu options over a two year period. An employment unit that has more than 10 employees and is not located in a small market must complete four menu options over a two year period. The menu of options consists of the following activities:

1. Participation in at least four job fairs by station personnel who have substantial responsibility for hiring decisions.
2. Hosting at least one job fair.
3. Co-sponsoring at least one job fair with an organization in the business and professional community whose membership includes substantial participation of women and minorities.
4. Participation in at least four activities sponsored by community groups active in broadcast employment issues, including conventions, career days, workshops, and similar activities.
5. Establishment of an internship program designed to assist members of the community to acquire skills needed for broadcast employment.
6. Participation in general outreach efforts by such means as job banks or Internet programs.
7. Participation in scholarship programs directed to students desiring broadcasting careers.
8. Establishment of training programs designed to enable station personnel to acquire skills that could qualify them for higher-level positions.
9. Establishment of mentoring programs designed to enable station personnel to acquire skills that could qualify them for higher-level positions.
10. Participation in at least four events or programs relating to career opportunities in broadcasting sponsored by educational institutions.
11. Sponsorship of at least two events in the community designed to inform the public as to employment opportunities in broadcasting.
12. Listing each upper-level opening in a job bank or newsletter of a media trade group with a broad-based membership, including participation of women and minorities.
13. Providing assistance to outside nonprofit entities in the maintenance of websites that provide counseling on the process of searching for broadcast employment and/or other career development assistance pertinent to broadcasting.
14. Providing training to management level personnel as to methods of ensuring equal employment opportunity and preventing discrimination.
15. Providing training to personnel of outside recruitment organizations that would enable them to better refer job candidates for broadcast positions.
16. Participation in activities other than the 15 listed above that the licensee has designed to further the goal of disseminating information about employment opportunities in broadcasting to job candidates who might otherwise be unaware of such opportunities.

Broadcasters may perform these menu options on a "joint basis," meaning they may perform these menu options with the involvement of other broadcasters, organizations, or their corporate headquarters.

Step 3: Internal Recordkeeping

Broadcasters with five or more full-time employees must maintain the following documentation and, in the event of an investigation or audit, provide it to the FCC upon request:

1. Listing of all full-time job vacancies filled by the station employment unit, identified by job title.
2. For each such vacancy, the recruitment sources used to fill the vacancy identified by name, address, contact person, and telephone number (and including, if applicable, organizations entitled to notification, which should be separately identified).
3. The specific recruitment source(s) from which each candidate interview was derived.
4. Dated copies of all advertisements, bulletins, letters, faxes, emails, or other communications announcing vacancies.
5. Documentation establishing that "notification organizations" received the job vacancy information that was requested.
6. Documentation necessary to demonstrate performance of menu options, including sufficient information to disclose fully the nature of the initiative and the scope of the station's participation, including the station personnel involved.

Broadcasters must retain all records documenting their outreach efforts until the grant of the renewal application covering the license term during which the hire or recruitment activity occurs.

Step 4: Maintaining Your Public File Report

Broadcasters with five or more full-time employees must place in their online public file annually, on the anniversary of the renewal application filing date, an EEO public file report containing the following information:

1. List of all full-time vacancies filled by the station employment unit during the preceding year, identified by job title.
2. For each such vacancy, the recruitment source(s) used to fill the specific vacancy including the address, contact person, and telephone number of each source (and including organizations entitled to notification of vacancies, which should be separately identified).
3. List of the recruitment sources that referred the people hired for each full-time vacancy.
4. Data reflecting the total number of persons interviewed for full-time vacancies during the preceding year.
5. For each recruitment source used in connection with any such vacancies, the total number of interviewees referred by that source.
6. List and brief description of the menu options implemented during the preceding year.

Broadcasters with websites must post EEO public file reports on the station's website and provide a link to their online public inspection file.

In addition to a station's annual upload of its EEO Public File Report to the station's online public inspection file, there are two additional instances in which a broadcaster may need to file its public file report with the Commission.

• The EEO public file reports covering the two-year period preceding the filing of a renewal application must be submitted with that application as an attachment to FCC Form 396. Broadcasters are required to keep a copy of Form 396 in their online public files.
• All television stations that are part of an employment unit of five or more full-time employees and all radio stations that are part of an employment unit of 11 or more full-time employees are subject to a mid-term review of their employment practices by the Commission. This review takes place four years after the station's most recent license renewal deadline date.

The manner in which information is presented in a public file report can either expedite or prolong the Commission's review of a broadcaster's EEO compliance. Because the Commission does not prescribe a particular format for the report, broadcasters are left on their own as to how to organize their data. A format that works for the broadcaster may not necessarily present the information in a way that will facilitate review by the Commission. We can assist you with development of a program to manage day-to-day compliance with the Commission's EEO recordkeeping and public file requirements and a public file report that is both easy to maintain and easy for the Commission to assess.

FCC Form 395-B: Broadcast Station Annual Employment Report

The FCC recently released its Fourth Report and Order reinstating the annual filing of Form 395‑B for all broadcasters with five or more full-time employees. This form requires stations to report information regarding the gender, race and ethnicity of all full and part-time employees, and is due to be filed annually on September 30. The requirement becomes effective June 3, 2024, subject to any judicial challenge and subsequent stay or reversal of the FCC Order.

EEO Audits

The FCC randomly audits 5% of all licensees each year. Generally, the Commission issues a Public Notice announcing the audits, following which the licensees are sent a letter requesting information that must be produced to the Commission for review. The letter usually contains seven to eight questions, four or five of which require narrative responses. The licensee is also expected to attach its public file reports for the two reporting periods immediately preceding the audit and documentation supporting the data therein.

In the past, the Commission has asked questions that focus on the broadcaster's "self-assessment" of its EEO compliance. The FCC rules require that each licensee conduct an ongoing analysis of its EEO program to evaluate its effectiveness and cure any deficiencies. Specifically, the Commission is often (but not exclusively) interested in knowing how broadcasters periodically analyze the following:

1. The manner in which the broadcaster distributes its EEO program information to job applicants and employees.
2. The method employed by the broadcaster to review its seniority practices to make sure they are not discriminatory, i.e., that benefits available to employees based on their length of employment are not conferred in a manner that explicitly or implicitly indicates a preference based on race, national origin, color, religion, or gender.
3. Efforts to ensure that pay practices and fringe benefits are made available in a nondiscriminatory fashion and are equitable among employees with the same duties.
4. The manner in which internal promotions are made to ensure they are not discriminatory.
5. The manner in which the media is used to recruit for job vacancies to ensure that preferences (explicit or implicit) based on race, national origin, color, religion, or gender are avoided.
6. Cooperation with unions in the development of EEO programs.
7. The broadcaster's efforts to avoid tests and techniques in hiring employees that have the effect of discriminating against candidates based on race, national origin, color, religion, or gender.

If you receive an audit letter from the Commission, we recommend that you promptly bring it to our attention so that we may assist you in preparing responses and documentation that best respond to the Commission's concerns.

*David Silverman is a contract attorney and former partner of DWT. Sharon Mathis, broadcast paralegal, also contributed to this advisory.