Employment 'Broad Outreach' - What Is It Now?

The FCC has just released declaratory ruling that broad outreach in hiring may now be achieved under its rules solely with Internet notice, provided certain standards are met. To understand this development, a little history is useful.

It is nearly 15 years since the FCC adopted the current EEO rules that require "broad outreach" whenever a broadcast station employment unit seeks candidates for a new full-time position. Previously, the Commission required stations to meet specific racial and gender diversity goals in the employment work group and this new standard was deemed preferable, as the law was evolving and it was clear that the former standard would necessarily trigger a constitutional strict scrutiny analysis by the courts. In a case brought by the Lutheran Church, the court focused on the FCC's "processing guidelines" discussing racial and ethnic goals required for renewal.

Satisfied that hiring without broad outreach might unfairly exclude minorities and women job candidates, the Commission established the standard we live with now. Notification of new hiring opportunities be must be achieved with "wide dissemination" of each full-time (30 hours or more) job vacancy, except for vacancies occurring in exigent circumstances. This applies to all employment units of five or more full-time employees.

Broad outreach was deemed necessary to ensure that all segments of the population had an equal opportunity to compete for broadcast employment and that no segment would be subjected to intentional or unintentional discrimination. The Commission stated that the rule would neither require nor preclude the use of any specific source a broadcaster might deem appropriate to achieve broad outreach.

However, it rejected the suggestion that broad outreach could be achieved solely through the use of the Internet. It did, however, require that, together, the EEO recruitment sources used be reasonably calculated to reach the "entire community."

Initially it proposed that "community" be defined to include, at a minimum, the county in which the station is licensed or the MSA, in the case of counties located in an MSA. In the end, it left the definition of "market" or "community" to the licensee's good faith discretion, provided that in making that determination, the broadcaster includes an assessment of the technical coverage of the station, its marketing, promotional and advertising practices, and the practices of relevant commercial services such as Nielsen.

Even at that time in 2002, a group of state broadcaster's associations had proposed that posting of job vacancies on the Internet constituted adequate recruitment. The Commission stated its concern, however, that the use of the Internet as the sole recruitment source would disproportionally disadvantage minorities and those living in rural areas Addressing its concern over access of minority and rural populations to the Internet, the Commission analyzed a series of reports by the National Telecommunications and Information Administration ("NTIA") in 1995, 1998, 1999 and 2002. Those reports led it to question whether industry websites had become well known as repositories of job announcements for prospective applicants and whether Internet availability was sufficiently widespread to reach prospective applicants without Internet access to conduct job searches.

On April 21st, the Commission announced its reassessment of that conclusion. In a declaratory ruling immediately effective, the Commission found that Internet usage has become sufficiently widespread to permit broadcaster and multichannel video program distributors (MVPDs) to use the Internet as a sole recruitment source to meet that "wide dissemination" requirement of its rules.

The ruling went on to cite the significant decrease in print newspaper circulation and contrasted it with the dramatic increase in Internet use. In fact, it recognized that most Americans use online resources for their job search and that it was time to modify its EEO policies to better reflect the significant growth of Internet usage and online recruitment sources that has occurred since 2002. For example, while in September 2001 only half of U.S. households had an Internet connection, today 85% of American adults have either a broadband Internet service at home or use smart phones.

The Commission's own data reflect that the number of Internet connections in the U.S. has surpassed the U.S. population and 77% of American adults now own smart phones, roughly half of American adults now own a tablet device, and nearly 80% of American adults now own a desktop or laptop computer. Accordingly, it believes that computer access has become sufficient so that it can reasonably be assumed that an Internet job posting will be readily available to all segments of the community if posted on a widely available site.

The ruling points to a 2015 Pew Research Center study reporting that 90% of Americans who had looked for work in the preceding two years used online resources for their job search and 84% of them submitted their job applications online. In fact, it acknowledged that the Commission itself requires job applicants to submit job applications online. Equally important, the change in policy to Internet only recruitment was endorsed by MMTC, submitting that minorities now use wireless broadband to search for jobs more often than non-minorities do.

Thus, its analysis was even more searing than expected and may foretell its attitude regarding upcoming dockets related to cross-ownership review. Compared to newspapers, the Commission found that the generally free or cost effective use of Internet postings would assist in broader outreach than costly print advertising and that employers can automate the process of posting jobs online. Thus, the Commission found that online job postings were now likely to achieve the largest number of people possible if posted on a widely available site.

That last caveat is important!

The Commission cautioned that the staff will continue to examine the specifics of each case to ascertain whether the posting of a full-time job vacancy actually achieved wide dissemination. Broadcasters were cautioned that they must continue to "use recruitment sources for each full-time vacancy sufficient in its reasonable, good faith judgment to widely disseminate information concerning the vacancy."

Broadcasters will remain free to select the number and type of recruitment sources they use, and may even use a single online posting if the posting appears on a website that is so widely used that it can reasonably be expected to achieve broad outreach and wide dissemination. So the choice of websites and Internet outreach remain very important and must continue to be done thoughtfully with FCC policy goals in mind.

The Order became effective immediately upon release, which occurred on April 21st, 2017.

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.