BALCA En Banc Decision Summaries
UNDULY RESTRICTIVE JOB REQUIREMENTS/BUSINESS NECESSITY

Unduly restrictive job requirements :

Business necessity

Rebuttal

NOTICE : These BALCA en decision summaries were created solely to assist BALCA staff in researching BALCA caselaw. The summaries are not part of the opinions and in no way constitute the official opinion of BALCA, the Office of Administrative Law Judges or the Department of Labor on any subject. The summaries should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. They are intended simply as a research tool, and are not intended as final legal authority and should not be cited or relied upon as such.

Regulation's requirements are conjunctive

Unduly restrictive job requirements: the requirements of subsections A, B and C § 656.21(b)(2)(i) must be read as conjunctive. Thus, job requirements which do not comply with all three subsections A, B and C (normal for the job in the US, defined in the DOT, and not language other than English) are unduly restrictive unless adequately documented as arising from business necessity. LUCKY HORSE FASHION, INC. , 1997-INA-182 (Aug. 22, 2000) (en banc)

When CO may raise issue of unduly restrictive job requirements

Unduly restrictive job requirements: insufficient for the CO merely to conclude that he does not understand the job opportunity, and therefore the requirements are unduly restrictive: position was for a Research Chemist with highly technical and complex position requirements. THE STANDARD OIL COMPANY , 1988-INA-77 (Sept. 14, 1988) (en banc)

Unduly restrictive job requirements: the Board found that CO misconstrued a statement in the job advertisement referencing British primary teaching methods" as a job requirement: neither the ad nor the ETA 750A asserted experience in British methods as a job requirement and no US workers were rejected on that basis. PROSPECT SCHOOL , 1988-INA-184 (Dec. 22, 1988) (en banc)

Unduly restrictive job requirements: CO may require adjustment of experience requirement where the experience plus an implied educational requirement exceeds the DOT. FISCHER IMAGING CORP. , 1988-INA-43 (May 23, 1989) (en banc)

Job duties as requirements

Unduly restrictive job requirements: job duty: case arising in 5th Circuit remanded for reconsideration under Ashbrook-Simon-Hartley v. McLaughlin , 863 F.2d 410 (5th Cir. 1989).(job duties listed in block 13 of the ETA 750A must be considered by the CO as job requirements): [Editor's note: the Board has not extended Ashbrook outside the 5th Circuit]. OMEGA CONTRACTOR, INC. , 1988-INA-37 (Apr. 25, 1989) (en banc)

Unduly restrictive job requirements: job duty: Ashbrook-Simon-Hartley remand. TEH-TUNG STEAMSHIP (HOUSTON), INC. , 1989-INA-9 (Apr. 17, 1990) (en banc)

Unduly restrictive job requirements: difference between job duties and job requirements: job requirements must be set out in ETA 750A, items 14 and 15: however, an employer who lists experience in the job offered engrafts the job duties: whether requiring experience in the duties is unduly restrictive then become grist for a NOF: in the instant application CO erred by finding that job duties were unduly restrictive where employer had not made them a job requirement. BEL AIR COUNTRY CLUB , 1988-INA-223 (Dec. 23, 1988) (en banc)

Business necessity: general standard: Information Industries test

Unduly restrictive job requirements: business necessity: "[T]o establish business necessity under §656.21(b)(2)(i), an employer must demonstrate that the job requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform, in a reasonable manner, the job duties as described by the employer." INFORMATION INDUSTRIES, INC. , 1988-INA-82 (Feb. 9, 1989) (en banc)

Business necessity: cooking specializations

Unduly restrictive job requirements: business necessity; cooking specialization requirements for domestic cook position: Board reviewed three applications involving domestic cooks with job requirements for experience in specific styles or types of cuisine (Kosher, Vegetarian, Polish). The Board held that cooking specialization requirements for domestic cooks are unduly restrictive within the meaning of the regulation at 20 C.F.R. § 656.21(b)(2), and therefore must be justified by business necessity pursuant to the test found in Information Industries, 1988-INA-82 (Feb. 9, 1989) (en banc). The Board also held that cooking specialization requirements for domestic cooks normally should be analyzed under the business necessity standard of 20 C.F.R. § 656.21(b)(2) prior to their consideration as a factor under the bona fide job opportunity analysis of 20 C.F.R. § 656.20(c)(8). See Carlos Uy III , 1997-INA-304 (Mar. 3, 1999)(en banc). MARTIN KAPLAN , 2000-INA-23 (July 2, 2001) (en banc)

Business necessity: combination of duties

Unduly restrictive job requirements: business necessity: combination of duties: where Employer's assertions that it would be economically infeasible to hire two workers were unexplained and unsupported, the CO properly denied certification. WANG WESTLAND INDUSTRIAL CORPORATION , 1988-INA-27 (Mar. 3, 1989) (en banc)

Unduly restrictive job requirement: business necessity: combination of duties: section 656.21(b)(2)(ii) requires that if a job opportunity contains a combination of duties, the employer must document that 1) it has normally employed persons for that combination of duties, and/or 2) that workers customarily perform the combination of duties in the area of intended employment, and/or 3) that the combination job opportunity is based upon business necessity. "The first two prongs of this provision, the "normally employed" and "industry norm" tests, are fairly straightforward and easily applied. For example, the Board has previously held that, where a combination of duties is consistent with the description of the job in the Dictionary of Occupational Titles (DOT), the combination is normal and business necessity need not be shown. Alan Bergman Photography, 88-INA-404 (Sept. 28, 1989). Similarly, in Van Boerum & Frank Associates, 88-INA-156 (Dec. 5, 1989), a small engineering firm justified a combination of managerial and training duties by documenting that, although it had never used the combination, it was customarily used by firms in the area of intended employment." The business necessity prong is only reached if the employer cannot establish one of the first two prongs. "Accordingly, for a combination of duties to be based on business necessity under § 656.21(b)(2)(ii), an employer must document that it is necessary to have one worker to perform the combination of duties, in the context of the employer's business, including a showing of such a level of impractibility as to make the employment of two workers infeasible. The intent of this formula is to focus the parties on addressing the fundamental issue of why it is necessary to have one worker perform the duties instead of two or more. Implicit in this standard is a showing by the employer that reasonable alternatives such as part-time workers, the purchase of new equipment, and a reordering of responsibilities within the organization are infeasible. In addition, though not necessary to satisfy the test, a showing that the duties are essential to perform each other would weigh heavily in favor of business necessity." (footnote omitted). " The level and burden of proof under this standard must necessarily be high because, to rely on this provision, an employer is already proposing a combination which has not been normal to its business or the particular industry in general. A mere showing that the combination produces financial savings, or adds to the efficiency or quality of the employer would not, therefore, satisfy the above standard." (footnote omitted). If the employer can establish the business necessity of the combination of duties, it must still establish the business necessity under the Information Industries standard of the job requirements for each set of duties. ROBERT L. LIPPERT THEATRES , 1988-INA-433 (May 30, 1990) (en banc)

Unduly restrictive job requirements: business necessity: combination of duties: The fact that a job does not fit into a pigeonhole in the Dictionary of Occupational Titles does not mean that the Employer does not normally employ the combination or that it is not customarily employed in the relevant industry. If the C.O. finds that the combination does not meet these first two tests under section 656.21(b)(2)(ii), she shall consider whether it satisfies the standard for the business necessity of a combination of duties contained in Robert L. Lippert Theatres, 88-INA-433 (May 30, 1990)(en banc). UNIBANCO , 1988-INA-561 (May 30, 1990) (en banc)

Business necessity: experience and educational requirements

Unduly restrictive job requirements: business necessity: experience requirement: general statement of the employer, standing alone, insufficient to establish business necessity for one year experience requirement for press operator. AQUARIUS ENTERPRISES , 1987-INA-579 (Mar. 24, 1988) (en banc)

Unduly restrictive job requirements: business necessity: experience with protocol relating to VIPs and foreign investors: Employer established that such experience was necessary but failed to establish that three years of such experience was necessary. VENTURE INTERNATIONAL ASSOCIATES, LTD. , 1987-INA-569 (Jan. 13, 1989) (en banc)

Unduly restrictive job requirements: where DOT states a SVP of 3 to 6 months experience, employer's 6 month experience requirement is not unduly restrictive. LEBANESE ARAK CORP. , 1987-INA-683 (Apr. 24, 1989) (en banc)

Unduly restrictive job requirements: business necessity: educational requirement: employer required one year of secretarial college: CO properly found that this was unduly restrictive: "One year of college would not guarantee a successful employee, especially when no degree or diploma is required. Requiring one year of college without a certificate of completion would only serve to exclude qualified U.S. workers who may have demonstrated experience as successful secretaries who have not attended college for one year." BUSINESS MEN'S INSURANCE , 1988-INA-78 (May 31, 1989) (en banc)

Unduly restrictive job requirements: business necessity: educational and experience requirements: where CO summarily, and without explanation, rejected Employer's rebuttal argument, the Board reversed and granted labor certification. QUINCY SCHOOL COMMUNITY COUNCIL , 1988-INA-81 (Feb. 21, 1989) (en banc)

Unduly restrictive job requirements: business necessity: lawyer with experience in international trades issues: statement from employer explaining duties and litigious nature of its business adequate to meet Information Industries criteria. AMERICAN EXPORT TRADING CO. , 1988-INA-220 (June 15, 1990) (en banc)

Unduly restrictive job requirements: business necessity: education requirement as alternative to experience requirement: the Board found that letters from a school administrator and a child psychotherapist adequately documented the reasonableness of the one year of college requirement where the letters were uncontradicted and the CO did not proffer any reason for rejecting those letters as not credible. KENNETH R. GOLDMAN , 1988-INA-288 (May 31, 1990) (en banc)

Unduly restrictive job requirements: business necessity: educational degree: employer's evidence failed to establish second prong of Information Industries test: evidence only showed that employer's products were diverse and technical, and did not provide sufficient information to determine whether the educational degree disputed by the CO was essential to perform, in a reasonable manner, the job duties as described by the employer. ATLANTIC SALES, INCORPORATED , 1988-INA-349 (May 24, 1989) (en banc)

Unduly restrictive job requirements: business necessity: experience: prong one of Information Industries test (he job requirements bear a reasonable relationship to the occupation in the context of the employer's business) is obviously met where the requirement is experience in the job offered. NATIONAL INSTITUTE FOR PETROLEUM AND ENERGY RESEARCH , 1988-INA-535 (Mar. 17, 1989) (en banc)

Unduly restrictive job requirements: business necessity: experience: prong two of Information Industries test was established for the employer's five year experience requirement where the employer presented evidence that the position offered was an upper level, supervisory position in the complex and sophisticated industry of thermodynamics research. NATIONAL INSTITUTE FOR PETROLEUM AND ENERGY RESEARCH , 1988-INA-535 (Mar. 17, 1989) (en banc)

Business necessity: foreign language requirements

Unduly restrictive job requirements: business necessity: foreign language requirement: statement that 14% of students speak foreign language did not establish business necessity for a position employee whose job it is to process applications. FELICIAN COLLEGE , 1987-INA-553 (May 12, 1989) (en banc)

Unduly restrictive job requirements: business necessity: foreign language requirement: whether German or German-Swiss is sufficient for employer's business needs. SPUHL ANDERSON MACHINE CO. , 1987-INA-564 (May 18, 1989) (en banc)

Unduly restrictive job requirements: business necessity: foreign language requirement: written assertions, although documentation that must be considered, need not be credited by a CO where they lack underlying support: statistics showing that 20% of employer's business is conducted in Spanish found not, standing alone, to establish business necessity where there was no evidence about the language capabilities of remaining employees. WASHINGTON INTERNATIONAL CONSULTING GROUP , 1987-INA-625 (June 3, 1988) (en banc)

Unduly restrictive job requirements: business necessity: foreign language requirement: inadequate evidence of the need for three Indian dialects. BELHA CORPORATION , 1988-INA-24 (May 5, 1989) (en banc)

Unduly restrictive job requirements: business necessity: foreign language requirement: Employer met Information Industries test were it established that a significant part of the job must be performed in Brazil and Argentina, and required the employee to communicate in the native languages of those countries. COKER'S PEDIGREED SEED COMPANY , 1988-INA-48 (Apr. 19, 1989) (en banc)

Unduly restrictive job requirements: business necessity: foreign language requirement: Employer established that its Arabic language requirement bore a reasonable relationship to the position of sales and marketing director, in the context of the employer's business, since the director must deal with Middle East clients who require an Arabic speaking representative, and such business constitutes a significant share of its operations. Employer also established that the Arabic language requirement is essential to perform, in a reasonable manner, the job duties as described by the Employer, since the employee must negotiate contracts and financial agreements and must provide technical assistance to Middle East client who require a company representative to speak Arabic. Fact that some letters written by Employer's clients were written in poorly construed English did not show lack of need for Arabic. CONSTRUCTION AND INVESTMENT CORP., dba EFFICIENT AIR , 1988-INA-55 (Apr. 24, 1989) (en banc)

Unduly restrictive job requirements: business necessity: foreign language: where job was retail clerk for a health food store in California, evidence that Alien may have used his knowledge of Indonesian language to write letters to potential customers in Indonesia was not relevant evidence: dicta that some customer loss is not sufficient, in itself to support business necessity as there is a large potential customer base. WEIDNER'S CORPORATION , 1988-INA-97 (Nov. 2, 1988) (en banc)

Unduly restrictive job requirements: business necessity: foreign language requirement: financial controller for roofing company: "The job description for the financial controller's position fails even to suggest interaction with any individuals other than Best Roofing's own employees, and thus does not support Employer's statement that the successful candidate must interact with businessmen, contractors and customers lacking fluency in English.": cites with approval dicta in Weidner's Corp ., 1988-INA-97 (Nov. 3, 1988) (en banc): that some customer loss is not sufficient, in itself to support business necessity where there are other potential customers. BEST ROOFING COMPANY, INC. , 1988-INA-125 (Dec. 20, 1988) (en banc)

Unduly restrictive job requirements: business necessity: foreign language requirement: certification granted where unrebutted evidence was that virtually all of the restaurant operators it conducts business with speak Chinese as their principal language and many do not speak English at all, and that given the complexity of the transactions, and the necessity of precision in communication concerning the various food products, the employee must have the ability to communicate in Cantonese and Mandarin: employer also that the employee's contact with suppliers of oriental food products requires the ability to communicate in Chinese. SYSCO INTERMOUNTAIN FOOD SERVICES , 1988-INA-138 (May 31, 1989) (en banc)

Unduly restrictive job requirements: business necessity: foreign language requirement: "When applied to a foreign language requirement, the Information Industries business necessity test involves two basic issues. To satisfy the first prong of Information Industries, an employer must show that a significant portion of its business is performed in a foreign language or with foreign-speaking clients or employees. ...If a small portion of the employer's business involves persons speaking a foreign language, this may be insufficient to establish business necessity. ... To satisfy the second prong of Information Industries, an employer must show that the employee's duties require communication or reading in a foreign language." (citations omitted). Employer established business necessity where the job principally involved communication with Korean-speaking suppliers (1st prong) and where the person holding the job would be speaking Korean with the suppliers about 95% of the time on the job (2d prong: " When the job duties include or demand interaction with clients who only speak a foreign language, the second prong of business necessity"). TEL-KO ELECTRONICS, INC. , 1988-INA-416 (July 30, 1990) (en banc)

Unduly restrictive job requirements: business necessity: foreign language requirements: the Board rejected the CO's apparent position restricting the concept of business necessity to only those cases where the employer would suffer loss to its existing business if the specific qualification were not required, and not to a situation in which its goal is to expand its business in foreign markets. The Board held that this interpretation was not supported by the statute or regulations, and found that the employer had presented sufficient proof to establish the business necessity of foreign language requirements for an export manager. The Board did not find it significant that much of the documentation submitted by the employer to show business necessity was written in English, since it was logically apparent that consumer products could only be advertised and sold to and through distributors in the Philippines and in South America using the language of the customers' countries. REMINGTON PRODUCTS, INC. , 1989-INA-173 (Jan. 9, 1991) (en banc)

Unduly restrictive job requirements: business necessity: foreign language requirement: Board declines to reach issue of whether an employer's clients' preference alone can justify a foreign language ability requirement, finding that the case did not present that scenario. INTERNATIONAL STUDENT EXCHANGE OF IOWA, INC. , 1989-INA-261 (Apr. 21, 1992) (en banc)

Unduly restrictive job requirements: business necessity: foreign language requirement: justification based on poor English-language proficiency of workforce: the Board held that such evidence, standing alone, does not establish that a foreign language requirement bears a reasonable relationship to the occupation within the context of Employer's business. Thus, an employer relying on such evidence alone has not satisfied the first prong of the Information Industries business necessity test. LUCKY HORSE FASHION, INC. , 1997-INA-182 (Aug. 22, 2000) (en banc)

Business necessity: grade point average

Unduly restrictive job requirements: business necessity: high grade point average: mere fact that US applicant was not rejected for this reason is irrelevant as unduly restrictive job requirement may have discouraged other workers from applying. COLORGRAPHICS CORPORATION , 1987-INA-600 (Nov. 20, 1987) (en banc)

Business necessity: live-in and spilt-shift requirements

Unduly restrictive job requirements: business necessity: live-in requirement: inadequate documentation of why worker would need to live on the premises. ROLAND AND BLANCA LAURENZO , 1987-INA-603 (Feb. 24, 1987) (en banc)

Unduly restrictive job requirements: business necessity: live-in, spilt-shift requirement: Employer presented evidence that live-in, spilt-shift requirement was based on fact that he is an 83-year old widower: reversal where CO did not explain why this fact was not sufficient to establish business necessity. SIEGFRED SANDER , 1987-INA-721 (May 31, 1989) (en banc)

Unduly restrictive job requirements: business necessity: domestic live-in requirement: in domestic live-in cases "the relevant "business" is the "business" of running a household or managing one's personal affairs": "To establish the business necessity for a live-on-the-premises requirement for a domestic worker, the employer must demonstrate that the requirement is essential to perform, in a reasonable manner, the job duties as described by the employer. In the context of a domestic live-in worker, pertinent factors in determining whether the live-on-the-premises requirement is essential for the performance of the job duties include the Employer's occupation or commercial activities outside the home, the circumstances of the household itself, and any other extenuating circumstances.": mere personal preference to have an employee live on the premises does not establish business necessity. MARION GRAHAM , 1988-INA-102 (Feb. 2, 1990) (en banc)

Business necessity: nonstandard work hours

Unduly restrictive job requirements: business necessity: nonstandard work hours: the Board questioned whether a 2:30 p.m. to 9:00 p.m. work schedule was justified where the child to be tutored by the employee was still an infant. The Board, however, also questioned the CO's conclusion that a 9 to 5 schedule was normal for a child tutor and remanded the case for consideration under the current circumstances (the child no longer being an infant). KENNETH R. GOLDMAN , 1988-INA-288 (May 31, 1990) (en banc)

Business necessity: proficiency/familiarity with employer's equipment, systems, software, etc.

Unduly restrictive job requirements: business necessity: failure to establish that the equipment with which Employer requires proficiency is different from other systems used in the industry: therefore second prong of Information Industries business necessity test not met. AMERICAN COPPER AND NICKEL CO., INC. , 1987-INA-556 (May 16, 1989) (en banc)

Unduly restrictive job requirements: business necessity: employer failed to establish business necessity under the second prong of Information Industries for the requirement of prior familiarity with its fast food operations where it did not explain or document "why Jack-In-The-Box operations are so different that an applicant who has general fast-food managerial experience cannot perform the duties of Jack-In-The-Box manager after a reasonable amount of training." TRI-P'S CORP., dba JACK-IN-THE-BOX , 1987-INA-686 (Feb. 17, 1989) (en banc)

Unduly restrictive job requirements: business necessity: specialized requirements for a Research Associate: CO erred in refusing to consider a rebuttal letter prepared by one of employer's professors explaining why the specialized requirements were integral to the research; however, the CO reasonably requested documentation from a disinterested person confirming the necessity of the requirements given their highly technical nature: employer provided this documentation in a motion for reconsideration, which the CO found still inadequate: the Board, however, found that the original rebuttal and the new information on reconsideration were sufficient to establish business necessity. TEXAS A & M UNIVERSITY , 1988-INA-162 (Mar. 1, 1989) (en banc)

Unduly restrictive job requirements: business necessity: general statement that the requirements, such as familiarity with Employer's IBM 34 computer systems, allowed Employer to make a reasonable and practical testing of the job market was insufficient to establish business necessity. DANBY-PALICIO , 1987-INA-530 (Mar. 21, 1989) (en banc)

Business necessity: union membership

Unduly restrictive job requirements: business necessity: union membership: although not technically an unduly restrictive job requirements case, the Board ruled that union membership was justified by business necessity under facts of the case. CANADIAN NATIONAL RAILWAY CO. , 1990-INA-66 (Sept. 11, 1992) (en banc)

Rebuttal: offer to reduce restrictive requirements and readvertise

Unduly restrictive job requirements: offer to reduce restrictive job requirements insufficient rebuttal where the reduced requirements are still too restrictive for the job and appear to be tailored to the qualifications of the alien. MULTI-PROCESS INTERNATIONAL CORP. , 1987-INA-529 (Nov. 13, 1987) (en banc)

Unduly restrictive job requirements: business necessity: unequivocal offer to readvertise if rebuttal is not accepted: A. Smile , 1989-INA-1 (Mar. 6, 1990), does not apply where employer sought to add a restrictive requirement after finding U.S. applicants who were qualified: [Note: this is a companion case to Ronald J. O'Mara, 1996-INA-113 (Dec. 11, 1997) (en banc)]. PLANT ADOPTION CENTER , 1994-INA-374 (Dec. 12, 1997) (en banc)

Unduly restrictive job requirements: business necessity: unequivocal offer to readvertise if rebuttal is not accepted: Board affirms holding in A. Smile , 1989-INA-1 (Mar. 6, 1990) affording an employer the opportunity to attempt to establish the business necessity for a job requirement and, if unsuccessful, readvertise the position if the employer has unequivocally agreed to readvertise in accordance with the requirements set forth by the CO in the NOF. RONALD J. O'MARA , 1996-INA-113 (Dec. 11, 1997) (en banc)

Rebuttal: NOF that limits Employer's rebuttal options: "The principle underlying O'Mara is improperly circumvented by the CO where the NOF is written in such a way so as to preclude the employer from agreeing to delete the restrictive requirement and readvertise if its business necessity argument is not accepted by the CO." Cottonwood Home , 2004-INA-2 and 42 (Mar. 11, 2005) (en banc)

See also REBUTTAL: Offer to readvertise if rebuttal not accepted