Articles Posted in Employment/EEO

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What a difference a day makes.

As previously discussed in CommLawCenter, the Department of Labor announced in May a change to its overtime regulations.  That change would more than double the minimum salary needed to qualify an employee as exempt from overtime pay, and was scheduled to go into effect on December 1, 2016.  Because the change in the overtime-exempt minimum salary was so dramatic (moving from  $23,660 to $47,476 annually) the business community has been seeking to block it or at least mitigate its impact.  As part of that effort, Senator Lamar Alexander of Tennessee recently introduced S.3464 in the Senate, which would phase in the higher salary threshold over several years, and offer some relief to nonprofits, colleges and universities, certain health care providers, and state and local governments.

As we noted a few weeks ago, however, the likelihood of that legislation becoming law before December 1 is slim, particularly given that President Obama is likely to veto any bill that threatens to undercut the goal of using more overtime pay to help rebuild the middle class.  Taking a different tack, the State of Nevada and twenty other states brought suit against the Department of Labor’s new regulations in the U.S. District Court for the Eastern District of Texas.  A similar suit brought in that court by the Plano Chamber of Congress and over fifty other business organizations was recently consolidated with the 21 States’ suit.

In response to a motion filed by the 21 States, the District Court today granted a nationwide preliminary injunction, preventing the new salary threshold (and scheduled increases to it in future years) from going into effect until the court has had an opportunity to rule on the legality of the rule change.  In doing so, the court made clear that the Department of Labor will have a hard time defending it.  Under the Fair Labor Standards Act (FLSA), Congress exempted from overtime pay those employees who are employed in a “bona fide executive, administrative, or professional capacity”, and authorized the Department of Labor to adopt, and from time to time update, regulations defining which employees fall into those categories.

In granting the preliminary injunction, the court found that the Department of Labor had exceeded that authorization by including a salary component in addition to the “duties” test embedded in the statute:

After reading the plain meanings together with the statute, it is clear Congress intended the EAP exemption to apply to employees doing actual executive, administrative, and professional duties. In other words, Congress defined the EAP exemption with regard to duties, which does not include a minimum salary level.

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[The FLSA] authorizes the Department to define and delimit these classifications because an employee’s duties can change over time….  While this explicit delegation would give the Department significant leeway to establish the types of duties that might qualify an employee for the exemption, nothing in the EAP exemption indicates that Congress intended the Department to define and delimit with respect to a minimum salary level. Thus, the Department’s delegation is limited by the plain meaning of the statute and Congress’s intent. Directly in conflict with Congress’s intent, the Final Rule states that “[w]hite collar employees subject to the salary level test earning less than $913 per week will not qualify for the EAP exemption, and therefore will be eligible for overtime, irrespective of their job duties and responsibilities.”  With the Final Rule, the Department exceeds its delegated authority and ignores Congress’s intent by raising the minimum salary level such that it supplants the duties test.

Further buttressing his preliminary findings, the judge added that:

The Department has admitted that it cannot create an evaluation “based on salary alone.”  But this significant increase to the salary level creates essentially a de facto salary-only test. For instance, the Department estimates 4.2 million workers currently ineligible for overtime, and who fall below the minimum salary level, will automatically become eligible under the Final Rule without a change to their duties.  Congress did not intend salary to categorically exclude an employee with EAP duties from the exemption.  [Cites omitted for clarity.]

It seems likely the Department of Labor will seek an immediate appeal of the preliminary injunction for two reasons.  First, of course, is the fact that the federal government hoped that once the rule change went into effect on December 1, it would be politically impossible to reduce the salary threshold without incurring the ire of millions of employees now receiving overtime pay.  Second, and a more recent development, is that if the preliminary injunction holds, and the court case continues beyond January 20 (as it will), a Department of Labor within the Trump administration might no longer be interested in defending the rule change, effectively letting the preliminary injunction become permanent.

On top of that, if the final result of the court case is a ruling that any increase over the existing $23,660 annual salary requirement is impermissible without a statutory change, then the drastic increase in the salary threshold attempted by the Department of Labor will have backfired.  Any effort to adopt a more moderate increase in the salary threshold would run headlong into the court’s decision here.  And the law of unintended consequences strikes again.

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November 2016

This Broadcast Station Advisory is directed to radio and television stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

December 1, 2016 is the deadline for broadcast stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont to place their Annual EEO Public File Report in their public inspection file and post the report on their station website. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by December 1, 2016.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports with their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with more than ten full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint of their eight-year license term along with FCC Form 397 – the Broadcast Mid-Term EEO Report.

Exempt SEUs – those with fewer than five full-time employees – do not have to prepare or file Annual or Mid-Term EEO Reports.

For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group. This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, December 1, 2016 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the public inspection files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO rules, even though LPTV stations are not required to maintain a public inspection file. Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request. Therefore, if an LPTV station has five or more full-time employees, or is part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from December 1, 2015 through November 30, 2016. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before November 30, so long as they begin the next annual reporting period on the day after the cut-off day used in the immediately preceding Report. For example, if the Nonexempt SEU uses the period December 1, 2015 through November 20, 2016 for this year’s report (cutting it off up to ten days prior to November 30, 2016), then next year, the Nonexempt SEU must use a period beginning November 21, 2016 for its next report. Continue reading →

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But there are treatments available. When the Department of Labor announced in May that it would more than double the minimum salary needed to qualify an employee as exempt from overtime pay on December 1, 2016, you could hear the collective gasp from businesses nationwide. That sound echoed even more loudly in broadcast studios across the country, as the “round the clock/breaking news” nature of running a broadcast station places a high premium on employees that aren’t locked into a 9 to 5 existence. By increasing the minimum salary needed for an employee to qualify as overtime-exempt (from $23,660 annually to $47,476 annually), the rule change may price many broadcast employees out of their jobs.

Continue reading →

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This Broadcast Station Advisory is directed to radio and television stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

October 1, 2016 is the deadline for broadcast stations licensed to communities in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands to place their Annual EEO Public File Report in their public inspection file and post the report on their station website. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by October 3, 2016 (because October 1 falls on a weekend, submission of this filing to the FCC may be made the following business day).

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Exempt SEUs – those with fewer than five full-time employees – do not have to prepare or file Annual or Mid-Term EEO Reports.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports with their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with more than ten full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint of their eight-year license term along with FCC Form 397 – the Broadcast Mid-Term EEO Report.

For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group. This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, October 1, 2016 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the public inspection files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO rules, even though LPTV stations are not required to maintain a public inspection file. Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request. Therefore, if an LPTV station has five or more full-time employees, or is part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from October 1, 2015 through September 30, 2016. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before September 30, so long as they begin the next annual reporting period on the day after the cut-off day used in the immediately preceding Report. For example, if the Nonexempt SEU uses the period October 1, 2015 through September 20, 2016 for this year’s report (cutting it off up to ten days prior to September 30, 2016), then next year, the Nonexempt SEU must use a period beginning September 21, 2016 for its next report.

Deadline for Performing Menu Option Initiatives

The Annual EEO Public File Report must contain a discussion of the Menu Option initiatives undertaken during the preceding year. The FCC’s EEO rules require each Nonexempt SEU to earn a minimum of two or four Menu Option initiative-related credits during each two-year segment of its eight-year license term, depending on the number of full-time employees and the market size of the Nonexempt SEU.

  • Nonexempt SEUs with between five and ten full-time employees, regardless of market size, must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees, located in the “smaller markets,” must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees, not located in “smaller markets,” must earn at least four Menu Option credits over each two-year segment.

The SEU is deemed to be located in a “smaller market” for these purposes if the communities of license of the stations comprising the SEU are (1) in a county outside of all metropolitan areas, or (2) in a county located in a metropolitan area with a population of less than 250,000 persons.

Because the filing date for license renewal applications varies depending on the state to which a station is licensed, the time period in which Menu Option initiatives must be completed also varies. Radio and television stations licensed to communities in the states identified above should review the following to determine which current two-year segment applies to them:

  • Nonexempt radio station SEUs licensed to communities in Alaska, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands must have earned at least the required minimum number of Menu Option credits during the two year “segment” between October 1, 2015 and September 30, 2017, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Iowa and Missouri must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2014 and September 30, 2016, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Iowa and Missouri must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2015 and September 30, 2017, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Alaska, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2014 and September 30, 2016, as well as during the previous two-year “segments” of their license terms.

Deadline for Filing EEO Mid-Term Report (FCC Form 397) for Radio Stations Licensed to Communities in Iowa and Missouri, and Television Stations Licensed to Communities in Florida, Puerto Rico, and the Virgin Islands

  • October 1, 2016 is the mid-point in the license renewal term of radio stations licensed to communities in Iowa and Missouri and television stations licensed to communities in Florida, Puerto Rico, and the Virgin Islands.
  • Radio station SEUs with more than ten full-time employees licensed to communities in Iowa and Missouri, and television SEUs with five or more full-time employees licensed to communities in Florida, Puerto Rico, and the Virgin Islands, must electronically file the Form 397 Report by October 3 (as October 1 falls on a weekend). Licensees subject to this reporting requirement must attach copies of the SEU’s two most recent Annual EEO Public File Reports to their 397 Report.
  • Note that SEUs that have been the subject of a prior FCC EEO audit are not exempt and must still file FCC Form 397 by the deadline. Electronic filing of FCC Form 397 is mandatory. A paper version will not be accepted for filing unless accompanied by an appropriate request for waiver of the electronic filing requirement.

Recommendations

It is critical that every SEU maintain adequate records of its performance under the EEO Rule and that it practice overachieving when it comes to earning the required number of Menu Option credits. The FCC will not give credit for Menu Option initiatives that are not reported in an SEU’s Annual EEO Public File Report or that are not adequately documented. Accordingly, before an Annual EEO Public File Report is finalized and made public by posting it on a station’s website or placing it in the public inspection file, the draft document, including supporting material, should be reviewed by communications counsel.

Finally, note that the FCC is continuing its program of EEO audits. These random audits check for compliance with the FCC’s EEO Rule and are sent to approximately five percent of all broadcast stations each year. Any station may become the subject of an FCC audit at any time. For more information on the FCC’s EEO Rule and its requirements, as well as practical advice for compliance, please contact any of the attorneys in the Communications Practice.

A PDF of this article can be found at Annual EEO Public File Report Deadline for Stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands.

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This Broadcast Station Advisory is directed to radio and television stations in California, Illinois, North Carolina, South Carolina, and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

August 1, 2016 is the deadline for broadcast stations licensed to communities in California, Illinois, North Carolina, South Carolina, and Wisconsin to place their Annual EEO Public File Report in their public inspection file and post the report on their station website. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by August 1, 2016.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports with their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with more than ten full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint of their eight-year license term along with FCC Form 397 – the Broadcast Mid-Term EEO Report.

Exempt SEUs – those with fewer than five full-time employees – do not have to prepare or file Annual or Mid-Term EEO Reports.

For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group. This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, August 1, 2016 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the public inspection files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO rules, even though LPTV stations are not required to maintain a public inspection file. Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request. Therefore, if an LPTV station has five or more full-time employees, or is part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file. Continue reading →

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June 1, 2016 is the deadline for broadcast stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming to place their Annual EEO Public File Report in their public inspection file and post the report on their station website. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by June 1, 2016.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports with their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with more than ten full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint of their eight-year license term along with FCC Form 397 – the Broadcast Mid-Term EEO Report.

Exempt SEUs – those with fewer than five full-time employees – do not have to prepare or file Annual or Mid-Term EEO Reports.

For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group. This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, June 1, 2016 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the public inspection files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO rules, even though LPTV stations are not required to maintain a public inspection file. Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request. Therefore, if an LPTV station has five or more full-time employees, or is part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

Continue reading →

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October has come and gone, and now the season is upon us—filing season, that is!  Though winter is coming, December will be a hot month for radio and television FCC filings. Failure to meet any of these filing deadlines could result in fines or lost opportunities, putting a real damper on the holidays.  With that in mind, we’ve compiled a summary of some of the major upcoming filing obligations and deadlines.

  • December 1: Annual DTV Ancillary/Supplementary Services Reports (FCC Form 2100 Schedule G)

Commercial television, digital Class A television, and digital LPTV stations must electronically file by December 1, 2015 FCC Form 2100 Schedule G, the Annual DTV Ancillary/Supplementary Services Report for Commercial Digital Television Stations, regardless of whether they have received any income from transmitting ancillary or supplementary services. If a digital station provided ancillary or supplementary services during the 12-month time period ending September 30, 2015, and received compensation for doing so, that station is required to pay to the FCC five percent of the gross revenue from such services concurrently with the filing of Form 2100 Schedule G.

Note that this Report was formerly known as FCC Form 317.  With the introduction of the FCC’s new Licensing and Management System, it is now FCC Form 2100 Schedule G.

For a more detailed summery of this filing requirement, you can review our Annual DTV Ancillary/Supplementary Services Report Client Advisory.

  • December 1: Annual EEO Public File Reports for AL, CO, CT, GA, MA, ME, MN, MT, ND, NH, RI, SD, and VT

Station Employment Units (“SEUs”) that have five or more full-time employees and are comprised of radio and/or television stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, or Vermont must by this date place in their public inspection file and post on their station website a report regarding station compliance with the FCC’s EEO Rule during the period December 1, 2014 through November 30, 2015.

December 1 is also the mid-point in the license renewal term of radio stations licensed to communities in Alabama and Georgia; therefore, by this date radio SEUs with 11 or more full-time employees in these states must electronically file the FCC Form 397 Broadcast Mid-Term Report along with copies of the SEU’s two most recent Annual EEO Public File Reports.

We’ve prepared an Annual EEO Public File Report Client Advisory with more information regarding these obligations.

  • December 1:  Biennial Ownership Reports for Noncommercial  Stations in AL, CO, CT, GA, MA, ME, MN, MT, ND, NH, RI, SD, and VT (FCC Form 323-E)

In addition to their Annual EEO Public File Reports, noncommercial television stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, or South Dakota, and noncommercial radio stations licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, or Vermont (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by December 1, 2015 their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states. The FCC Form 323-E does not require a filing fee.

Note that the Commission’s August 6, 2015 Order extending the biennial ownership report filing deadline for commercial television and radio stations to December 2 does not apply to these Form 323-E filings for noncommercial stations.

Our Noncommercial Station Biennial Ownership Report Client Advisory has more information on this filing requirement.

  • December 2: Biennial Ownership Reports for Commercial Stations (FCC Form 323)

All commercial radio, full-power television, low-power television, and Class A television stations must electronically file by December 2, 2015 their biennial ownership reports on FCC Form 323 and pay the required FCC filing fee. This year, the fee is $65.00 per station. As a reminder, the FCC extended the usual November filing deadline to December through an Order released this summer, giving commercial licensees an additional month to prepare their reports while maintaining the “as of” reporting date of October 1, 2015.

For a more detailed summary of this filing requirement, check out our Commercial Station Biennial Ownership Report Client Advisory.

  • December 18: Spectrum Auction Applications (FCC Form 177)

As we posted last month, the FCC released its Auction Application Procedures Public Notice, announcing the filing window and application procedures to be used for broadcast stations wishing to participate in the spectrum auction. The auction application form, FCC Form 177, must be filed by each licensee interested in participating in the auction.  The application filing window opens at 12 p.m. Eastern Time on December 1, 2015 and runs until 6 p.m. Eastern Time on December 18, 2015.

After the December 18 deadline for filing Form 177, (1) no major changes may be made to the application (e.g., changing the bid options or licenses offered in the auction, or, except in certain circumstances, making major ownership changes), and (2) the Form 177 must be updated within five days of the applicant learning that information in the form is no longer accurate.

FCC staff will send letters to individual applicants indicating that the applicant’s form is (1) complete, (2) rejected, or (3) incomplete or deficient in a minor way that may be corrected. In the case of the third option, the letter will specify a deadline for submitting a corrected application, and applications that are not corrected by that time will be dismissed with no opportunity to refile.

With so many FCC deadlines stacking up in December, we recommend broadcasters start preparing their reports and applications sooner rather than later.  As Dr. Seuss reminded us:

How did it get so late so soon?
It’s night before its afternoon.
December is here before its June.
My goodness how the time has flewn.
How did it get so late so soon?

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Interns are a perennial part of the media landscape, and you have probably heard a lot over the last few years on the subject of unpaid interns. Specifically, that unless they qualify as genuine interns under a six-part Department of Labor (DOL) test, businesses are required to treat them (and therefore pay them) as employees.

The resurgence in interest in the subject came in early 2010 when the Department of Labor began stepping up enforcement against for-profit businesses illegally using unpaid interns. In April of 2010, the DOL’s Wage and Hour Division released a Fact Sheet providing guidance on when an individual can be classified as a trainee or intern exempt from the Fair Labor Standard Act’s requirement that employees be paid at least the federal minimum wage and receive overtime pay. The Fact Sheet dutifully laid out the six-part test that the DOL adopted in the 1960s, noting that “[i]nternships in the ‘for-profit’ private sector will most often be viewed as employment” unless all six of the criteria are met. The six criteria are:

  • the internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • the internship experience is for the benefit of the intern;
  • the intern does not displace regular employees, but works under close supervision of existing staff;
  • the employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  • the intern is not necessarily entitled to a job at the conclusion of the internship; and
  • the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

From the DOL’s perspective, if an employer can’t demonstrate that all six factors are met, that intern is an employee, and the employer is liable for unpaid wages.

However, if you operate in New York, Connecticut, or Vermont, the rules have now changed, and if you operate in one of the other 47 states, change may be on the way. In a case launched by unpaid interns that worked on the film Black Swan, the influential U.S. Court of Appeals for the Second Circuit last week rejected the DOL’s test as too rigid. In doing so, the Second Circuit overturned a lower court’s certification of class actions on behalf of the unpaid interns, finding that the question of employment status is a “highly individualized inquiry” poorly suited to a class or collective action.

As discussed in much more detail in a Pillsbury Client Alert from our own Julia Judish and Osama Hamdy, the Second Circuit chose instead to adopt a “Primary Beneficiary” test, which “focuses on what the intern receives in exchange for his work” and “also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.” Simple, right?

Business owners might justifiably complain that the court replaced a complicated six-part subjective test with a simpler but even more subjective test. However, the Pillsbury Client Alert lays out a number of considerations suggested by the court for determining whether an intern is the primary beneficiary of the relationship with the employer, including an increased focus on the connection between the internship and the intern’s academic course of study.  The court wrote that

[b]y focusing on the educational aspects of the internship, our approach better reflects the role of internships in today’s economy than the DOL factors, which were derived from a 68‐year old Supreme Court decision that dealt with a single training course offered to prospective railroad brakemen.

While a number of the considerations suggested by the Second Circuit are similar to those in the DOL test, the difference is that the court’s test provides the flexibility to look at other factors that might be relevant to answering the question, and unlike the DOL test, does not consider the absence of any one factor to be determinative of an intern’s status under the Fair Labor Standards Act.

Rather than listing the court’s suggestions for factors that might (in addition to others) be considered, let me suggest you take a look at the Client Alert. It not only outlines those factors, but suggests a number of steps businesses can take to clarify their relationship with unpaid interns, whether they are subject to the DOL or the Second Circuit criteria.

The good news for employers is that the Second Circuit’s test (which for the moment only applies in the Second Circuit’s jurisdiction of NY, CT, and VT) allows a business to present any information relevant to demonstrating that the unpaid intern is not an employee. The bad news is that the unpaid intern has that same flexibility in seeking to prove he or she is really an employee that needs to be paid.  In addition, employers in these states face an increased risk of misclassification claims for internships not connected with an academic program.  Making sure your business has done all it can to end up on the right side of that analysis is your next challenge.

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May 2015

This Broadcast Station Advisory is directed to radio and television stations in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

June 1, 2015 is the deadline for broadcast stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming to place their Annual EEO Public File Report in their public inspection file and post the report on their station website. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by June 1, 2015.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program. Continue reading →

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As we all know, it’s easy to complain about the Federal Government these days given the gridlock that currently exists on Capitol Hill, the Sequester, and the looming debt ceiling battle. But let’s give credit where credit is due.

The FCC has revised its Equal Employment Opportunity (EEO) audit letter for all broadcast licensees, and has eased the burden on respondents by eliminating the need to produce copies of each and every job vacancy notice that was sent out to every referral source, allowing stations instead to file only a representative copy of each job opening notice along with a list of the referral sources to which it was sent. In addition, the FCC has changed its audit letter to allow the submission of a single on-air job advertisement log sheet instead of requiring stations to provide multiple log sheets. The letter also states that stations are not required to provide copies of “applicants’ resumes …, company training manuals, posters, employee handbooks, or corporate guidebooks.” While responding to an EEO audit remains a time consuming task, the FCC has at least taken a step in the right direction by better focusing the audit request on the most consequential materials.

The new version of the EEO audit letter was, as required by the FCC’s rules, sent to randomly selected radio and television stations in the past few weeks. The FCC annually audits the EEO programs of approximately five percent of broadcast stations and has released the list of the stations subject to the most recent audit. All stations, whether targeted for this round of audits or not, should carefully review the FCC’s sample audit letter, as it informs stations of what they will need to present when their time comes.

The FCC’s EEO rules require broadcast station employment units with five or more full-time employees to recruit broadly and inclusively for all job openings, and require substantial recordkeeping, periodic reports to the FCC, and the placement of those reports in stations’ public inspection files and on their websites. Broadcasters must also regularly analyze the results of their recruitment efforts to ensure that broad and inclusive outreach is being achieved and must keep detailed records of their recruitment outreach efforts to submit to the FCC in the event of an EEO audit.

For everything you ever wanted to know about ensuring compliance with the FCC’s EEO rules, see our comprehensive and recently updated Client Advisory: “The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters.”

The fact that stations will no longer need to provide multiple ad log sheets or the corporate materials described above will certainly make responding to an audit easier. That said, the FCC’s EEO rules are, and will continue to be, a significant regulatory burden on broadcasters. While broadcasters will not be required to submit as much material to the FCC as part of an EEO audit, they will continue to be required to maintain records extensively detailing their job recruitment efforts. In addition, stations should take note that the FCC’s Public Notice released with the new version of the EEO audit letter seems to indicate that in exchange for the reduced response burdens, the FCC is raising the bar and now expects stations to adopt a standard of “vigorous recruitment.”

Still, despite concerns as to what the FCC means by “vigorous”, it’s nice to see that the FCC is moving in the direction of simplified audits in an effort to actually ease regulatory filing burdens on broadcasters.