FCC Fines Broadcaster $25,000 for EEO – Employee Rights/Labor Relations Violations

You only need to register or log in to Mondaq.com to print this article.

A recent fine by the Federal Communications Commission (FCC) underscores the importance of broadcasters keeping up with their Equal Employment Opportunity (EEO) obligations.

On October 16, 2023, the FCC’s Office of Enforcement, now home to its EEO Division, issued a $25,000 Notice of Apparent Liability (NAL) against a small, family-owned broadcaster that operates two radio groups in Kansas. Due to financial difficulties, the broadcaster no longer has five full-time employees and is therefore no longer subject to EEO rules. Nevertheless, the FCC cited issues with the broadcaster’s 2020 and 2021 EEO Public File Reports (PFRs) to justify the fine. Specifically, NAL said the broadcaster: (i) failed to timely upload its annual EEO Public File Reports to the stations’ online public review files (OPIF); (ii) timely upload your EEO public file reports to the station websites; iii) recruiting broadly for certain vacancies; (iv) maintain your recruitment records; and (v) analyze its EEO program.

The breach deserves a closer look:

1. Late uploading of EEO PFR to OPIF and station sites

FCC rules mandate that a station’s annual EEO PFR be uploaded to its online public inspection file and the station’s website, if it has one, annually on or before the anniversary of the date on which the station is expected to apply for license renewal. Here, one cluster apparently uploaded one PFR to its OPIF 17 months later and another PFR five months later. The second cluster apparently uploaded the PFR to its OPIF with a one-year delay. The FCC “could not confirm the exact date licensees posted their EEO public file reports on their stations’ websites,” but cited a July 2021 attorney’s statement as evidence of noncompliance that station management was “in the process” of uploading the 2021 PFR to the website stations.

With the advent of OPIF, the FCC is now able to easily confirm the dates when documents are uploaded. Broadcasters should ensure that they have uploaded the PFR by the due date and double-check that the upload was successful. Station websites should be updated similarly.

2. Failure of broad recruitment

In general, broadcasters must “recruit extensively” for each full-time vacancy (although there are nuances for internal transfers/promotions and “exigent circumstances”). Although the Commission does not require the use of a specific number of recruitment sources, a broadcaster should reasonably expect that the sources it uses will “reach the whole community”. In NAL, the FCC found that a broadcaster failed to properly recruit for two positions because it relied solely on “internal referrals” for one position and relied solely on announcements broadcast on its stations for the other.

The lesson for broadcasters here is to use a variety of sources—including broad-reach online sources like Indeed and locally focused sources like a college or university—to advertise full-time jobs. Relying on just one source will generally be a violation of FCC rules, especially if that source is a “word of mouth” source such as an employee referral.

3. Failure to maintain documents

Broadcasters must not only undertake broad recruitment for each full-time vacancy, but must retain documentation to demonstrate that they have done so. In the NAL, the FCC said the broadcaster was unable to produce any documents in response to the agency’s letter of enforcement.

In addition to being able to submit EEO-related documentation in response to an FCC inquiry, documentation must also be submitted in response to an EEO audit. Therefore, broadcasters should make it a habit to take screenshots or keep job confirmation emails for each online resource used. If job offers are emailed to recruitment sources, copies of the letters sent should be kept. The FCC will often accept a wide variety of documentation to demonstrate that a source has been notified, but failure to maintain any documentation will generally result in enforcement action.

4. Failure to analyze the EEO program

FCC rules require broadcasters to continuously analyze their EEO recruitment efforts to ensure they are “effective in reaching a broad reach of potential applicants and addressing any issues identified as a result of such analysis.” In the NAL, the FCC found that “(g) due to the foregoing noncompliance with the Commission’s EEO rules,” the broadcaster had failed in its obligation to analyze its EEO program.

At least once a year, broadcasters should review their PFRs to determine which sources are effective in referring applicants. If the same sources refer applicants over and over again, the broadcaster should consider adding additional sources (preferably local sources and those targeting relevant minority populations). Ineffective sources may also be removed, although broadcasters may wish to consult with a lawyer beforehand to ensure they are not removing a “legitimate” source or a source that should be retained because of its (theoretical) ability to reach underrepresented segments of the population.

***

Good EEO policies and practices can help prevent FCC enforcement action. Wiley’s seasoned EEO team has extensive experience advising clients on EEO compliance programs, including responding to FCC inquiries and audits. Please contact any of the authors with questions.

The content of this article is intended to provide a general guide to the issue. Professional advice should be sought regarding your particular situation.

POPULAR ARTICLES ON: Employment and HR from the United States

New workplace poster requirements for employers

Outside of GC

As a result of recent legislative and other actions related to federal employment laws, employers are encouraged to review applicable workplace poster requirements and promptly update their postings…

New York State Passes New Employment Laws

Lewis Brisbois Bisgaard & Smith LLP

As the summer of 2023 drew to a close, New York continued to find creative ways to keep employers on their toes. Governor Kathy Hochul has signed several new jobs bills, some of which have already…

Employment Law Update, 12 October 2023

Parsons Behle & Latimer

The Equal Employment Opportunity Commission (EEOC) has proposed lengthy (144 page) enforcement guidelines regarding workplace harassment. Following public comments, the EEOC will likely…

Leave a Comment