that the information sought is essential to a successful investigation-particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information. (2) In civil cases there should be reasonable grounds, based on nonmedia sources, to believe that the information sought is essential to the successful completion of the litigation in a case of substantial inportance. The subpoena should not be used to obtain peripheral, nonessential, or speculative information. (3) The government should have unsuccessfully attempted to obtain the information from alternative nonmedia sources. (4) The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information. (5) Even subpoena authorization requests for publicly disclosed information should be treated with care to avoid claims of harassment. (6) Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents. (g) In requesting the Attorney General's authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply: (1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General's authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section. (2) When there have been negotiations with a member of the news media whose telephone toll records are to be subpoenaed, the member shall be given reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it. (3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days. (4) Any information obtained as a result of a subpoena issued for telephone toll records shall be closely held so as to prevent disclosure of the information to unauthorized persons or for improper purposes. (h) No member of the Department shall subject a member of the news media to questioning as to any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media, without the express authority of the Attorney General: Provided, however, That where exigent circumstances preclude prior approval, the requirements of paragraph (1) of this section shall be observed. (i) A member of the Department shall secure the express authority of the Attorney General before a warrant for an arrest is sought, and whenever possible before an arrest not requiring a warrant, of a member of the news media for any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media. (j) No member of the Department shall present information to a grand jury seeking a bill of indictment, or file an information, against a member of the news media for any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media, without the express authority of the Attorney General. (k) In requesting the Attorney General's authorization to question, to arrest or to seek an arrest warrant for, or to present information to a grand jury seeking a bill of indictment or to file an information against, a member of the news media for an offense which he is suspected of having committed during the course of, or arising out of, the coverage or investigation of a news story, or committed while engaged in the performance of his official duties as a member of the news media, a member of the Department shall state all facts necessary for determination of the issues by the Attorney General. A copy of the request shall be sent to the Director of Public Affairs. (1) When an arrest or questioning of a member of the news media is necessary before prior authorization of the Attorney General can be obtained, notification of the arrest or questioning, the circumstances demonstrating that an exception to the requirement of prior authorization existed, and a statement containing the information that would have been given in requesting prior authorization, shall be communicated immediately to the Attorney General and to the Director of Public Affairs. (m) In light of the intent of this section to protect freedom of the press, news gathering functions, and news media sources, this policy statement does not apply to demands for purely commercial or financial information unrelated to the news gathering function. (n) Failure to obtain the prior approval of the Attorney General may constitute grounds for an administrative reprimand or other appropriate disciplinary action. The principles set forth in this section are not intended to create or recognize any legally enforceable right in any person. [Order No. 916-80, 45 FR 76436, Nov. 19, 1980] § 50.12 Exchange of FBI identification records. (a) The Federal Bureau of Investigation, hereinafter referred to as the FBI, is authorized to expend funds for the exchange of identification records with officials of federally chartered or insured banking institutions to promote or maintain the security of those institutions and, if authorized by state statute and approved by the Director of the FBI, acting on behalf of the Attorney General, with officials of state and local governments for purposes of employment and licensing, pursuant to section 201 of Public Law 92-544, 86 Stat. 1115. Also, pursuant to 15 U.S.C. 78q, 7 U.S.C. 21 (b)(4)(E), and 42 U.S.C. 2169, respectively, such records can be exchanged with certain segments of the securities industry, with registered futures associations, and with nuclear power plants. The records also may be exchanged in other instances as thorized by federal law. au (b) The FBI Director is authorized by 28 CFR 0.85(j) to approve procedures relating to the exchange of identification records. Under this authority, effective. September 6, 1990, the FBI Criminal Justice Information Services (CJIS) Division has made all data on identification records available for such purposes. Records obtained under this authority may be used solely for the purpose requested and cannot be disseminated outside the receiving departments, related agencies, or other authorized entities. Officials at the governmental institutions and other entities authorized to submit fingerprints and receive FBI identification records under this authority must notify the individuals fingerprinted that the fingerprints will be used to check the criminal history records of the FBI. The officials making the determination of suitability for licensing or employment shall provide the applicants the opportunity to complete, or challenge the accuracy of, the information contained in the FBI identification record. These officials also must advise the applicants that procedures for obtaining a change, correction, or updating of an FBI identification record are set forth $50.14 Guidelines on employee selec- The guidelines set forth below are in- tended as a statement of policy of the Department of Justice and will be ap- plied by the Department in exercising its responsibilities under Federal law NOTE: These guidelines are issued jointly by four agencies. Separate official adoptions follow the guidelines in this part IV as fol- lows: Civil Service Commission, Department of Justice, Equal Employment Opportunity Commission, Department of Labor. E. Indian Preference Not Affected 3. Discrimination Defined: Relationship Be- tween Use of Selection Procedures and A. Procedure Having Adverse Impact Con- B. Consideration of Suitable Alternative B. Applicable Race, Sex and Ethnic Groups C. Evaluation of Selection Rates. The D. Adverse Impact And The "Four-Fifths E. Consideration of User's Equal Employ- 5. General Standards for Validity Studies A. Acceptable types of Validity Studies B. Criterion-Related, Content, and Con- C. Guidelines Are Consistent with Profes- D. Need For Documentation of Validity E. Accuracy and Standardization F. Caution Against Selection on Basis of Knowledges, Skills or Abilities Learned in Brief Orientation Period G. Method of Use of Selection Procedures I. Use of Selection Procedures for Higher J. Interim Use of Selection Procedures K. Review of Validity Studies for Currency 6. Use of Selection Procedures Which Have A. Use of Alternate Selection Procedures B. Where Validity Studies Cannot or Need (1) Where Informal or Unscored Proce- (2) Where Formal And Scored Procedures 7. Use of Other Validity Studies A. Validity Studies not Conducted by the A. Affirmative Action Obligations B. Encouragement of Voluntary Affirmative Action Programs TECHNICAL STANDARDS 14. Technical Standards for Validity Studies A. Validity Studies Should be Based on Review of Information about the Job B. Technical Standards for Criterion-Related Validity Studies (1) Technical Feasibility (2) Analysis of the Job (3) Criterion Measures (4) Representativeness of the Sample (5) Statistical Relationships (6) Operational Use of Selection Procedures (7) Over-Statement of Validity Findings (8) Fairness (a) Unfairness Defined (b) Investigation of Fairness (c) General Considerations in Fairness Investigations (d) When Unfairness Is Shown (e) Technical Feasibility of Fairness Studies (f) Continued Use of Selection Procedures When Fairness Studies not Feasible C. Technical Standards for Content Validity Studies (1) Appropriateness of Content Validity Studies (2) Job Analysis for Content Validity (4) Standards For Demonstrating Con tent Validity (5) Reliability (6) Prior Training or Experience (7) Training Success (8) Operational Use (9) Ranking Based on Content Validity Studies D. Technical Standards For Construct Validity Studies (1) Appropriateness of Construct Validity Studies (2) Job Analysis For Construct Validity Studies (3) Relationship to the Job (4) Use of Construct Validity Study Without New Criterion-Related Evidence (a) Standards for Use (b) Determination of Common Work Behaviors DOCUMENTATION OF IMPACT AND VALIDITY EVIDENCE 15. Documentation of Impact and Validity Evidence A. Required Information (1) Simplified Recordkeeping for Users With Less Than 100 Employees (2) Information on Impact (a) Collection of Information on Impact (b) When Adverse Impact Has Been Eliminated in The Total Selection Proc ess (c) When Data Insufficient to Determine Impact (3) Documentation of Validity Evidence (a) Type of Evidence (b) Form of Report (c) Completeness B. Criterion-Related Validity Studies (1) User(s), Location(s), and Date(s) of Study (2) Problem and Setting (3) Job Analysis or Review of Job Information (4) Job Titles and Codes (5) Criterion Measures (6) Sample Description (7) Description of Selection Procedure (8) Techniques and Results (9) Alternative Procedures Investigated (10) Uses and Applications (11) Source Data (12) Contact Person (13) Accuracy and Completeness C. Content Validity Studies (1) User(s), Location(s), and Date(s) of Study (2) Problem and Setting (3) Job Analysis-Content of the Job (4) Selection Procedure and its Content (5) Relationship Between Selection Procedure and the Job (6) Alternative Procedures Investigated (7) Uses and Applications.. (8) Contact Person (9) Accuracy and Completeness D. Construct Validity Studies (1) User(s), Location(s), and Date(s) of Study (2) Problem and Setting (3) Construct Definition (4) Job Analysis (5) Job Titles and Codes (6) Selection Procedure (7) Relationship to Job Performance (8) Alternative Procedures Investigated (9) Uses and Applications (10) Accuracy and Completeness (11) Source Data (12) Contact Person E. Evidence of Validity from Other Studies (1) Evidence from Criterion-Related Va lidity Studies (a) Job Information (b) Relevance of Criteria (c) Other Variables (d) Use of the Selection Procedure (e) Bibliography (2) Evidence from Content Validity Stud ies (3) Evidence from Construct Validity Studies F. Evidence of Validity from Cooperative Studies G. Selection for Higher Level Jobs H. Interim Use of Selection Procedures 16. Definitions DEFINITIONS APPENDIX 17. Policy Statement on Affirmative Action (see Section 13B) 18. Citations GENERAL PRINCIPLES SECTION 1. Statement of purpose- A. Need for uniformity-Issuing agencies. The Federal government's need for a uniform set of principles on the question of the use of tests and other selection procedures has long been recognized. The Equal Employment Opportunity Commission, the Civil Service Commission, the Department of Labor, and the Department of Justice jointly have adopted these uniform guidelines to meet that need, and to apply the same principles to the Federal Government as are applied to other employers. B. Purpose of guidelines. These guidelines incorporate a single set of principles which are designed to assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with requirements of Federal law prohibiting employment practices which discriminate on grounds of race, color, religion, sex, and national origin. They are designed to provide a framework for determining the proper use of tests and other selection procedures. These guidelines do not require a user to conduct validity studies of selection procedures where no adverse impact results. However, all users are encouraged to use selection procedures which are valid, especially users operating under merit principles. C. Relation to prior guidelines. These guidelines are based upon and supersede previously issued guidelines on employee selection procedures. These guidelines have been built upon court decisions, the previously issued guidelines of the agencies, and the practical experience of the agencies, as well as the standards of the psychological profession. These guidelines are intended to be consistent with existing law. SEC. 2. Scope- A. Application of guidelines. These guidelines will be applied by the Equal Employment Opportunity Commission in the enforcement of title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (hereinafter "Title VII"); by the Department of Labor, and the contract compliance agencies until the transfer of authority contemplated by the President's Reorganization Plan No. 1 of 1978, in the administration and enforcement of Executive Order 11246, as amended by Executive Order 11375 (hereinafter “Executive Order 11246"); by the Civil Service Commission and other Federal agencies subject to section 717 of title VII; by the Civil Service Commission in exercising its responsibil ities toward State and local governments under section 208(b)(1) of the Intergovernmental-Personnel Act; by the Department of Justice in exercising its responsibilities under Federal law; by the Office of Revenue Sharing of the Department of the Treasury under the State and Local Fiscal Assistance Act of 1972, as amended; and by any other Federal agency which adopts them. B. Employment decisions. These guidelines apply to tests and other selection procedures which are used as a basis for any employment decision. Employment decisions include but are not limited to hiring, promotion, demotion, membership (for example, in a labor organization), referral, retention, and licensing and certification, to the extent that licensing and certification may be covered by Federal equal employment opportunity law. Other selection decisions, such as selection for training or transfer, may also be considered employment decisions if they lead to any of the decisions listed above. C. Selection procedures. These guidelines apply only to selection procedures which are used as a basis for making employment decisions. For example, the use of recruiting procedures designed to attract members of a particular race, sex, or ethnic group, which were previously denied employment opportunities or which are currently underutilized, may be necessary to bring an employer into compliance with Federal law, and is frequently an essential element of any effective affirmative action program; but recruitment practices are not considered by these guidelines to be selection procedures. Similarly, these guidelines do not pertain to the question of the lawfulness of a seniority system within the meaning of section 703(h), Executive Order 11246 or other provisions of Federal law or regulation, except to the extent that such systems utilize selection procedures to determine qualifications or abilities to perform the job. Nothing in these guidelines is intended or should be interpreted as discouraging the use of a selection procedure for the purpose of determining qualifications or for the purpose of selection on the basis of relative qualifications, if the selection procedure had been validated in accord with these guidelines for each such purpose for which it is to be used. D. Limitations. These guidelines apply only to persons subject to title VII, Executive Order 11246, or other equal employment opportunity requirements of Federal law. These guidelines do not apply to responsibilities under the Age Discrimination in Employment Act of 1967, as amended, not to discriminate on the basis of age, or under sections 501, 503, and 504 of the Rehabilitation Act of 1973, not to discriminate on the basis of handicap. E. Indian preference not affected. These guidelines do not restrict any obligation imposed or right granted by Federal law to |