License Renewal and the EEO Certification Requirement
August 2, 2011
Don’t Forget to EVALUATE Your Program!
The U.S. broadcasting industry is now into the next FCC license renewal cycle. Radio began the cycle last June, and television will start next year. Every U.S. broadcaster will have to file a renewal application based on a schedule of two to four states every two months through April 2015. The new application that must be used for renewals contains a series of certifications relating to possible violations of the FCC’s rules and a big one relating to compliance with the FCC EEO program. Like many other FCC compliance obligations, the FCC EEO rules require planned adherence and record-keeping throughout the license term. Compliance cannot be achieved with a quick “make-up” session in the month before filing.
All broadcasters are, or certainly should be, well aware of the FCC’s Equal Opportunity Program requirements. Beginning in 2002 with the issuance of its Second Report and Order, FCC 02-303, the commission established the current EEO rule that emphasizes outreach in recruitment to all qualified job candidates in addition to the ongoing ban of discrimination on the basis of race, color, religion, national origin or gender. Except for exempt employment units of less than five full-time employees, the rules require compliance with a “3 Prong” approach to compliance:
- Prong 1: Widely disseminate information concerning each full-time (30 hours or more) job vacancy, except for vacancies filled in exigent circumstances;
- Prong 2: Provide notice of each full-time job vacancy to recruitment organizations that have requested such notice; and
- Prong 3: Complete two (for broadcast employment units with five to 10 full-time employees or that are located in smaller markets) or four (for all other employment units) longer-term recruitment initiatives within a two-year period.
Because of the outreach requirements broadcasters have tended to emphasize compliance with the three prong requirements in their compliance efforts. However, there is more to the current EEO rules, particularly the specific record-keeping requirements and the duty to examine and self-assess the employment unit’s EOO program and its success in achieving the program goals. Notably, these further requirements have played a significant role in recent EEO random audits, in some cases resulting in serious fines (called forfeitures in FCC parlance).
Moreover, the required self assessment cannot be performed properly without the detailed records that must be kept under the rules. Thus even if it was actually done, a failure to produce the required records to substantiate the 3-prong performance will nearly always draw an additional violation and fine for failure to adequately self-assess.
Here’s the issue. In the Second Report and Order, the Commission said that it expects licensees to continuously evaluate their compliance programs and improve upon them whenever and wherever possible. That principle is incorporated into two sections of the EEO rule.
Specifically, the Commission requires each employment unit to examine its recruitment program to ensure that it is effective in achieving broad outreach. It must also address any problems it finds and document the steps taken in response to them. Included in the evaluation must also be an assessment of how the employment unit’s use of media affirmatively demonstrates that prejudice against a protected class is not tolerated.
An example is the use of a statement that the employment unit is an equal opportunity employer in all advertisements and postings of the rights of employees under the EEO rules of the Equal Employment Opportunity Commission as well as state agencies.
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This effort must be made on an ongoing basis. While the frequency has not yet been defined, to be safe, a documented EEO self-evaluation program should be engaged in several times a year.
An employment unit’s duty of self-analysis does not stop with the 3-prong employment outreach program. A further rule section demands that employers examine their efforts to disseminate equal opportunity employment information to its own employees, and to examine its internal seniority and promotion practices, rates of pay, benefits and any inequities that could reflect bias regarding race, national origin, color, religion, or gender to ensure that all employer practices are nondiscriminatory.
It cannot be overemphasized that in addition to performing these activities and a meaningful evaluation, it is important to document them. FCC staff has repeatedly made the point that if there is no record supporting an action, then there is an unavoidable conclusion that it didn’t happen.
The Commission put it succinctly in a 2008 audit of a Cumulus station group.
Because of the Licensee’s lack of records of interviewees, referrals, and job notices, and its failure to document completion of one of its two required recruitment initiatives, we find that it was not possible for it to have adequately analyzed its recruitment program to ensure that it was effective in achieving broad outreach, in violation of Section 73.2080(c)(3).
The warning is clear. The job does not stop with successful completion of the three outreach EEO requirements. A periodic “meaningful” self-evaluation of the outreach program’s effectiveness and in-house employment practices is necessary to properly comply with the Commission’s program and to avoid the possibility of a violation. That will also avoid the necessity of a delayed and complicated license renewal that would occur with a negative response to the certification statement in the renewal form.
This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.