UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION APPEALS
Judges' Benchbook
Second Edition - May 1992


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CHAPTER 32 Divisions I to VI

UNDULY RESTRICTIVE JOB REQUIREMENTS/ BUSINESS NECESSITY

Return to Main Headings .
Check supplement .
Continue to Chapter 32 Divisions VII to VIII .
Continue to Chapter 32 Divisions IX to X .
TABLE OF CONTENTS

I. Overview and purpose

II. Regulatory provision

III. Preliminary finding that requirement is unduly restrictive

IV. Challenge to job itself

V. Business necessity, generally

VI. Foreign language requirements

I. Overview and purpose

Section 656.21(b)(2) proscribes the use of unduly restrictive job requirements in the recruitment process. Thus, the employer cannot use requirements that are not normal for the occupation or not included in the Dictionary of Occupational Titles (DOT), unless the employer establishes business necessity for that requirement. If the employer documents that the requirement is normal for the occupation or that it is included in the DOT, business necessity need not be established. See supra Division III.

The regulation, however, automatically places the burden on the employer to establish business necessity where the requirement is for a language other than English, see supra Division VI, involves a combination of duties, see supra Division VII, or is that the worker live on the employer's premises. See supra Division VIII. Employer preferences are to be considered job requirements. See supra Division X.

The reason unduly restrictive requirements are prohibited is that they have a chilling effect on the number of U.S. workers who may apply for or qualify for the job opportunity. The purpose of § 656.21(b)(2) is to make the job opportunity available to qualified U.S. workers. Venture International Associates, Ltd. , 87-INA-569 (Jan. 13, 1989) ( en banc ).

See also Chapter 1, IV, A in regard to the relationship between "unduly restrictive job requirements" and "actual minimum requirements."

II. Regulatory provision

Section 656.21(b)(2) provides:

  • (2) The employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements:

    • (i) The job opportunity's requirements, unless adequately documented as arising from business necessity:

      • (A) Shall be those normally required for the job in the United States;

      • (B) Shall be those defined for the job in the Dictionary of Occupational Titles ( D.O.T. ) including those for subclasses of jobs;

      • (C) Shall not include requirements for a language other than English.

    • (ii) If the job opportunity involves a combination of duties, for example engineer-pilot, the employer must document that it has normally employed persons for that combination of duties and/or workers customarily perform the combination of duties in the area of intended employment, and or the combination job opportunity is based on a business necessity.

    • (iii) If the job opportunity involves a requirement that the worker live on the employer's premises, the employer shall document adequately that the requirement is a business necessity.

    • (iv) If the job opportunity has been or is being described with an employer preference, the employer preference shall be deemed to be a job requirement for purposes of this paragraph (b)(2).

III. Preliminary finding that requirement is unduly restrictive

A. In general

A job opportunity has been described without unduly restrictive requirements where the requirements do not exceed those defined for the job in the DOT and are normally required for a job in the U.S. Lebanese Arak Corp. , 87-INA-683 (Apr. 24, 1989) ( en banc ); Duarte Gallery, Inc. , 88-INA-92 (Oct. 11, 1989). Hence, prior to an analysis of business necessity, consideration must be given to whether the particular job requirement is normally required or falls within the applicable DOT code. Tri-P's Corp. , 87-INA-686 (Feb. 17, 1989) ( en banc ).

1. Normal requirement in the U.S.

An employer's statement that a particular job requirement is normally required is not sufficient to establish that the requirement is normally required for the job in the United States. Tri-P's Corp. , 87-INA-686 (Feb. 17, 1989) ( en banc ).

2. DOT specifications

To determine whether a particular job requirement falls within the applicable DOT code, the CO must determine the job title which best describes the job and determine whether the job requirements specified by the employer fall within those defined in the DOT. LDS Hospital , 87-INA-558 (Apr. 11, 1989) ( en banc ). If the requirement or job duty is one listed in the DOT, it is not considered unduly restrictive. Garland Community Hospital , 89-INA-217 (June 29, 1991); A-Transmission Discount , 88-INA-118 (Mar. 27, 1990); Polytechnic University , 88-INA-282 (Oct. 25, 1989); Duarte Gallery, Inc. , 88-INA-92 (Oct. 11, 1989); Immaculate Conception Catholic School , 88-INA-554 (Sept. 25, 1989); Bel Air Country Club , 88-INA-223 (Dec. 23, 1988).

B. Evidentiary and procedural matters

1. Requirement that employer identify its requirements on ETA 750A

An employer must use items 14 and 15 on the ETA 750A to notify the CO of its minimum requirements so that the CO may, if necessary, challenge the stated requirements as unduly restrictive or as not the actual minimum, thus protecting U.S. applicants who may be discouraged from applying for the job by advertised requirements which are unduly restrictive or not the actual minimum. Bell Communications Research, Inc. , 88-INA-26 (Dec. 22, 1988).

2. Correction of restrictive requirement during rebuttal

During the rebuttal period an employer may correct a job opportunity described with unduly restrictive requirements by deleting the offensive requirement,

  • Standard Oil Company , 88-INA-77 (Sept. 14, 1988) (employer's deletion of one of the three job requirements deemed unduly restrictive and its reasonable explanation in its rebuttal of the necessity for the other two requirements, which the CO did not discuss in his Final Determination, constitute documentation that the job opportunity was described without unduly restrictive requirements).

or by reevaluating candidates without considering the requirement.

  • H.C. LaMarche Ent., Inc. , 87-INA-607 (Oct. 27, 1988) (employer could not be denied labor certification for failing to justify unduly restrictive requirements when, given the alternative between justifying the requirements and reevaluating all applicants under less restrictive requirements, employer chose to reevaluate under the less restrictive requirements).

3. Rejection on lawful grounds does not cure unduly restrictive requirement

The fact that U.S. applicants meet the restrictive requirement, but are rejected for other reasons, is irrelevant to the determination of whether the requirement is unduly restrictive. Colorgraphics Corp. , 87-INA-600 (Nov. 20, 1987) ( en banc ).

IV. Challenge to job itself

If the CO challenges requirements or job duties listed in the DOT, this amounts to a challenge of the job itself. Although an employer must establish that a bona fide job opportunity does exist,

  • See Chapter 6 (Bona Fide Job Opportunity).

it does not have to prove the necessity for the job itself.

  • Lebanese Arak Corp. , 87-INA-643 (Apr. 24, 1989) ( en banc ); Abedlghani & Houda Abadi , 90-INA-139 (June 4, 1991); Joon Sup Park , 89-INA-231 (Mar. 25, 1991); Ching and Yeou Lin , 89-INA-28 (Feb. 14, 1990); Dr. & Mrs. Shinn Shyng Chang , 88-INA-536 (Sept. 21, 1989); Annar Mangalji , 88-INA-177 (Oct. 12, 1988).

  • See also Information Industries, Inc. , 88-INA-82 (Feb. 2, 1989) ( en banc ), in which the Board noted that the business necessity test developed therein applied only to restrictive job requirements, and not to job duties.

For example, an employer does not have to establish the business necessity for a foreign language tutor,

  • In Dr. & Mrs. Shinn Shyng Chang , 88-INA-536 (Sept. 21, 1989), the CO challenged the business necessity of a Child Tutor's being required to instruct the employers' children in Mandarin Chinese and Taiwanese. The panel found that, in effect, the CO was impermissibly challenging the employers' desire to employ a Chinese language tutor for their children -that is, the CO was impermissibly challenging the business necessity of the job itself rather than the job requirements.

or a general houseworker to care for an elderly couple.

  • In Mr. & Mrs. Hubert G. Peabody , 90-INA-230 (Apr. 30, 1991), a panel held that the employer did not have to prove the need for a general houseworker to care for an elderly couple, where the employer offered to delete the occasional live-in duties and all the duties were within the DOT description of the job.

V. Business necessity, generally

A. The regulation

Where the employer cannot document that the job requirement is normal for the occupation or that it is included in the Dictionary of Occupational Titles, or where the requirement is for a language other than English, involves a combination of duties, or is that the worker live on the premises, the regulation at § 656.21(b)(2) requires that the employer establish business necessity for the requirement.

B. Information Industries test

The Board defined how an employer can show "business necessity" in Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ). The Information Industries standard requires that the employer show:

  • (1) that the requirement bears a reasonable relationship to the occupation in the context of the employer's business; and

  • (2) that the requirement is essential to performing, in a reasonable manner, the job duties as described by the employer.

The first prong of the test establishes a link between the job requirements and the employer's business. For example, with a foreign language job requirement, it is helpful to show the amount of the employer's business which involves foreign-speaking clients or use of the foreign language.

The second prong of the test ensures that the job requirement is related to the job duties which the employee must perform. For example, with a foreign language requirement, it is important to show that the employee communicates or reads in the foreign language while performing the job duties.

However, the Board noted, in Information Industries, Inc. , 88-INA-82 (Feb. 9, 1990) ( en banc ), that the standard developed therein applied only to restrictive job requirements, and not to job duties. See also Robert L. Lippert Theatres , 88-INA-433 (May 30, 1990) ( en banc ) (holding that the Information Industries test is not directly transferable to analysis of the combination of duties issue).

The Information Industries test has been redesigned in cases involving the business necessity of a live-on-the-premises requirement ( see infra Division VIII, B) and a combination of duties ( see infra Division VII, D, 1).

C. Evidentiary and procedural matters

1. Weight and admissibility of evidence

a. Vague and incomplete documentation

Vague and incomplete rebuttal documentation will not meet the employer's burden of establishing business necessity. Analysts International Corporation , 90-INA-387 (July 30, 1991) (various requirements found unduly restrictive).

b. Employer's written statements

Where the employer had provided written statements, under oath, which were reasonable, specific and indicated their sources and bases, the employer had established with sufficient documentation that the requirement of a Ph.D. degree was justified by a business necessity for the position of "Senior Research Reservoir Development Sedimentologist and Geologist." ARCO Oil & Gas Company , 89-INA-295 (May 22, 1991).

c. Disinterested third-party evidence

The CO may request, as a specific form of documentation, evidence from a disinterested third party that the job requirement arises out of a business necessity where the job requirements are of a highly technical nature. Texas A & M University , 88-INA-162 (Mar. 1, 1989) ( en banc ). Indeed, statements from disinterested third parties carry substantial persuasive weight in regard to establishing the business necessity of a requirement. PayMed/Health Assistance for Travelers, Inc. , 89-INA-166 (Feb. 6, 1990).

d. Relevancy of alien's skills

Evidence which discusses the employer's business and the necessity of the job requirements to perform the job duties is more relevant than evidence which merely explains the alien's superior skills. Texas A & M University , 88-INA-162 (Mar. 1, 1989) ( en banc ).

e. Deference to employer's judgment

In Highland Hospital of Rochester , 88-INA-564 and 569 (Nov. 16, 1989), the employer's professional judgment was accorded "particular respect" where the job opportunity was for a "Resident, Internal Medicine," and the question was the business necessity for a special requirement that graduates of foreign medical schools have either one year of residency training in a University hospital, or formal clinical education in an American teaching hospital. The panel concluded that such deference was appropriate where the position to be filled carries responsibility for the relief of human suffering and the preservation of human life. It should be noted that the employer's professional judgment in the need for adequate clinical experience was supported by reports of the Comptroller General and various medical articles showing the inadequacies of medical schools in certain countries, and by uncontradicted evidence that many U.S. hospitals have even more stringent requirements.

f. Essence or enhancement of business

In Information Industries, Inc. , 88-INA-82 (Feb. 9, 1990) ( en banc ), the Board specifically rejected a standard of business necessity which would include "something the absence of which would undermine the essence of the business operation." The Board also rejected a lower standard, that business necessity is shown if the requirements are reasonable and "tend to contribute to or enhance the efficiency and quality of the business."

2. Requirement that NOF clearly identify violations and required submissions

In the NOF, the CO should clearly identify what the alleged violations are and not confuse the employer as to what submissions are required. For example, in Benihana of Tokyo, Inc. , 89-INA-49 (Feb. 13, 1991), the panel remanded the case to give the employer the opportunity to document the business necessity for requiring an assistant manager to have experience in the management of a Japanese restaurant. The panel found the CO's discussion confusing and inappropriate, particularly since the CO required the employer to document business necessity for an alleged language requirement which was not a requirement for the position.

  • See Chapter 17, II, A (Notice of Findings) in regard to the elements of an adequate NOF generally.

3. Obligation of CO to address rebuttal evidence

The CO's failure to address rebuttal evidence submitted by an employer regarding business necessity, if the employer has made a good faith effort to recruit and respond to the CO's concerns, may result in a remand or reversal. Quincy School Community Council , 88-INA-81 (Feb. 21, 1989) ( en banc ); The Standard Oil Company , 88-INA-77 (Sept. 14, 1988) ( en banc ).

  • See also Topic 11 (Final Determination).

4. Timely building of record

An employer should justify its restrictive requirements by proving business necessity either in or before its rebuttal to the Notice of Findings. An employer cannot offer to change the restrictive requirement after the FD has been issued, as this offer is untimely. Colorgraphics Corp. , 87-INA-600 (Nov. 20, 1987). Further, any evidence submitted after the FD cannot considered by the Board. Universal Energy Systems, Inc. , 88-INA-5 (Jan. 4, 1989) ( en banc ).

See Chapter 26, III (Scope of Board Authority, Jurisdiction and Review) in regard to the record for review before the Board.

5. Admission based on failure to address NOF

An employer must address all of the alleged restrictive requirements in its rebuttal. Failure to address a restrictive requirement is grounds for affirming the CO as admitted by the employer. Belha Corp. , 88-INA-24 (Mar. 5, 1989) ( en banc ); Multi-Process International Corp. , 87-INA-529 (Nov. 13, 1987) ( en banc ); World Yacht Cruises , 90-INA-62 (May 22, 1991); Felix Shepeluk , 90-INA-294 (Mar. 5, 1991). See also Chapter 19, I (Rebuttal).

6. Offer to acquiesce if justification not accepted

Often, when there is an unduly restrictive requirement, the CO will offer the employer the opportunity to justify the requirement, or to amend the application without the requirement and readvertise. One panel has held that when an employer, in rebuttal, seeks to justify the requirement by alleging business necessity, and also indicates a willingness to readvertise in the rebuttal, the application cannot be denied without giving the employer the opportunity to amend and readvertise if the employer fails to prove business necessity. A. Smile, Inc. , 89-INA-1 (Mar. 6, 1990).

VI. Foreign language requirements

A. The regulation

Section 656.21(b)(2)(i)(C) provides that the job opportunity shall not include a requirement for a language other than English unless that requirement is adequately documented as arising from business necessity.

B. Information Industries applied

The business necessity standard of Information Industries , 88-INA-82 (Feb. 9, 1989) ( en banc ) (discussed supra Division V, B) is applicable to a foreign language requirement. See Coker's Pedigreed Seed Co. , 88-INA-48 (Apr. 19, 1989) ( en banc ). As the Information Industries standard has developed in relation to foreign language requirements, the first prong generally involves whether the employer's business includes clients, co-workers or contractors who speak a foreign language, and what percentage of the employer's business involves this foreign language. The second prong generally focuses on whether the employee's job duties require communicating or reading in a foreign language.

C. Communication with clients

1. Number of clients who speak the foreign language

The first prong of the business necessity test requires an employer who imposes a foreign language requirement to establish that the requirement bears a reasonable relationship to the occupation in the context of the employer's business. One method for showing such a relationship is to establish the existence of a foreign language speaking clientele.

a. Requirement that percentage be "significant"

The first prong of the business necessity test for a foreign language requirement is not established where the percentage of clients who speak the language is small.

  • Felician College , 87-INA-553 (May 12, 1989) ( en banc ) (processing student applications did not require ability to speak Spanish and Tagalog where only 10% of applicants speak Spanish and 4% Tagalog).

  • The Fifteenth Street Garage , 90-INA-52 (Nov. 21, 1990) (only a small number of clients allegedly spoke any of the three required languages).

  • Best Roofing Co., Inc. , 88-INA-125 (Dec. 20, 1988) (Farsi not necessary where only 12.5% of client base spoke Farsi and the business was roofing).

  • Washington International Consulting Group , 87-INA-625 (June 3, 1988) (Spanish not a necessity where only 23% of the client base was affected by the requirement).

The first prong may be met, however, when a significant share of the employer's business is conducted in a foreign language. Raul Garcia, M.D. , 89-INA-211 (Feb. 4, 1991).

  • Construction and Investment Corp., dba Efficient Air , 88-INA-55 (Apr. 24, 1989) ( en banc ) (Arabic a business necessity where a significant share of the employer's business operations included negotiating contracts and financial agreements with Middle Eastern clients).

  • Coker's Pedigreed Seed Co. , 88-INA-48 (Apr. 19, 1989) ( en banc ) (employer sought certification for a Senior Soybean Breeder; the job was located in Arkansas, but required frequent contact with and travel to Brazil and other parts of South America; thus, the employer required Spanish and Portuguese for the position; the employer established the first prong of the business necessity test because a "good" portion of the work had to be performed in Brazil and Argentina).

  • Details Sportswear , 90-INA-25 (Nov. 30, 1990) (a significant portion of the employer's customers required the purchasing agent to speak and write in Maranthi, Hindi, Sindi and Keralese).

  • Hidalgo Truck Parts, Inc. , 89-INA-155 (Mar. 15, 1990) (evidence of broad scope of Spanishspeaking population contiguous to employer's business situs).

Although the Board has not precisely quantified what constitutes a "significant" enough portion of the business to establish business necessity for a foreign language requirement, the percentages named in the cases has been as low as twenty to thirty percent.

  • Mr. Isak Sakai , 90-INA-330 (Oct. 31, 1991) (20 to 30% of business dependent on use of Farsi is significant).

  • Dimitri's, Inc. , 89-INA-169 (Mar. 14, 1990) (store manager for retail clothing required English, Spanish, Swedish, French and Greek where over 75% of the clientele were tourists, and over half of these tourists were Europeans requiring assistance in their own language).

  • But see Washington International Consulting Group , 87-INA-625 (June 3, 1988) (Spanish not a necessity where only 23% of the client base was affected by the requirement).

In other cases in which the employer has been successful in establishing business necessity, the percentage has been in the eighty to ninety percent range.

  • Tel-Ko Electronics, Inc. , 88-INA-416 (July 30, 1990) (reconsideration en banc) (where 95% of an employer's clients were Korean, a significant portion of the employer's business is performed with clients who use a foreign language and business necessity is established).

  • Chris and Cary Enterprises , 88-INA-134 (Sept. 3, 1991) (80% is a significant portion for a bilingual secretary who deals with a large number of customers who speak Chinese).

  • Hollytron , 88-INA-316 (Sept. 28, 1989) (sales manager position for electronics retailer required Korean; 80% of revenue from Korean customers and extensive sales promotions conducted in Korean community).

One panel has held that if the employer appears to be credible, and its supporting documentation shows that at least a significant number of clients are of a particular ethnic background, there is no need to document that the clients comprise any particular percentage of its business.

  • Raul Garcia, M.D. , 89-INA-211 (Feb. 4, 1991), the panel held that the employer established business necessity for the foreign language requirement by submitting copies of 100 bills issued to patients with Spanish surnames together with a statement that the language requirement was necessary to service certain customers. The panel rejected the CO's argument that the employer should demonstrate what percentage of the customers required the Spanish language, and found that a significant number of patients presumably were fluent in Spanish.

  • But see Prestige Cars Corp. , 88-INA-351 (July 17, 1989), discussed infra Division VI, C, 2, d, which indicates that an employer must provide details such as what percentage of its customers speak a foreign language.

2. Extent to which language is necessary in the transaction of business

Where an employer imposes a foreign language requirement, the second prong of the business necessity test requires the employer to establish that use of the foreign language is essential for the reasonable performance of the job duties. Hence, the employer must not only establish that a significant percentage of clients communicate primarily in a language other than English, see supra Division VI, C, 1, a, but must also establish that use of the language in essential for performance of the job duties in a reasonable manner.

Generally, as to the persuasiveness of evidence documenting the essential nature of communication in a language other than English, see infra Division VI, G, 3.

a. Frequent and constant

One way to show that the use of a foreign language is essential is to show that there is a frequent and constant need to communicate in the foreign language in business transactions. For example, in International Student Exchange of Iowa, Inc. , 89-INA-261 (Apr. 30, 1991), aff'd , 89-INA-261 (Apr. 21, 1992) ( en banc ) (per curiam), the employer established that an assistant to the placement administrator needed to frequently and constantly (ranging from 40 to 80 percent daily) use foreign languages in correspondence and personal or telephonic discussions with the parents of international students.

b. Relationship to the job duties

Simply proving that a significant percentage of the employer's clientele speaks the foreign language is not sufficient to establish business necessity if there is not a relationship between clientele's use of foreign language and job to be performed. In Coker's Pedigree Seed Co. , 88-INA-48 (Apr. 19, 1989) ( en banc ), the second prong of the business necessity test was met where the employee was required, in the performance of his job duties, to communicate with clients or coworkers in the foreign language. In Hidalgo Truck Parts, Inc. , 89-INA-155 (Mar. 15, 1990), business necessity was established by evidence of significant customer dependence on Spanish-speaking employees.

In contrast, in Splashware Company , 90-INA-38 (Nov. 26, 1990), while a significant number of the employer's clients required the use of a foreign language, the employer did not establish why an accountant would need to speak that language to perform the job duties for the employer. Moreover, in Best Roofing Co., Inc. , 88-INA-125 (Dec. 20, 1988), a percentage of the employer's client base spoke Farsi, but the employee was not required to interact with anyone other than the employer's own employees.

c. Potential loss of customers

A potential loss of some of the employer's customers is not sufficient to establish business necessity for a foreign language requirement,

  • Best Roofing Company, Inc. , 88-INA-125 (Dec. 20, 1988) ( en banc ) (12.5% of employer's customers had trouble speaking in English; business was roofing, so it was not obvious that the foreign language was necessary for the business in general).

at least where the market is not dependent on the foreign language speaking customers.

  • Weidner's Corporation , 88-INA-97 (Nov. 3, 1988) ( en banc ) (loss of some potential customers does not establish a business necessity for a foreign language requirement of a salesperson where the market provided many other potential customers).

  • But see infra Division VI, E, 2 in regard to the principle stated in several business expansion cases that business necessity does not require a loss to an employer's existing business.

d. Client preference

Where communication in a foreign language is a mere preference of the employer's clients, some Board decisions indicate that an employer's clients' preference to speak a foreign language supports business necessity for a foreign language requirement.

  • Mr. Isak Sakai , 90-INA-330 (Oct. 31, 1991) (20 to 30% of the employer's business involved clients who would take their business elsewhere if they could not conduct business in Farsi).

  • Raul Garcia, M.D. , 89-INA-211 (Feb. 4, 1991) (it was reasonable to require a social worker to be able to converse with patients in their native language even if the patients were bilingual).

  • In Jung Gil Choi, C.P.A. , 88-INA-254 (Mar. 27, 1990), the employer's client base was comprised almost entirely of Korean-Americans who preferred to, or had to, speak Korean when dealing with their accountants. The panel examined the job duties, which included matters such as preparing balance sheets, advising clients of tax obligations, preparing profit and loss statements, analyzing the records of clients, and advising clients in regard to the preparation of future budgets, and found that the language requirement was essential for performance of those duties in a reasonable manner. Cf. Splashware Company , 90-INA-38 (Nov. 26, 1990) (evidence failed to establish why an accountant would need to speak foreign dialects to perform the job).

  • Alywa Computer Corp. , 88-INA-218 (Sept. 21, 1989) (noting that the preference was the preference of the employer's clients, not the employer).

  • See also International Student Exchange of Iowa, Inc. , 89-INA-261 (Apr. 21, 1992) ( en banc ) (per curiam), aff'g , 89-INA-261 (Apr. 30, 1991), in which the Board declined to rule on whether a client preference alone can justify a foreign language ability requirement because some of the clients could not speak English.

  • See also Futures Travels, Inc. , 90-INA-234 (July 30, 1991) (vacated pending en banc review), in which the panel held that where 75% of more of an employer's business was done with persons who, though having some ability to speak English, were more at ease speaking one of the languages spoken in India, and who patronized the employer's travel agency largely because they could conduct business there in either Indian language, the language requirement was needed for reasonable performance of the job duties.

Other decisions, however, indicate that the clients' preference to communicate in a foreign language is insufficient to support a finding of business necessity for a foreign language requirement.

  • Weidner's Corp. , 88-INA-97 (Nov. 3, 1988) ( en banc ) (employer, a nutrition and health food store, failed to prove that persons from the Indonesian community in California would be "so completely ignorant of the English language that they are unable to appreciate and purchase their food").

  • E. G. Hutton & Co., Inc. , 89-INA-120 (Mar. 30, 1990) (clients preferred, but did not require, business to be done in foreign language; panel distinguished Construction and Investment Corp. , 88-INA-55 (Apr. 24, 1989) ( en banc ), on the ground that in that case the employer's customers required business to be done in the foreign language).

An employer cannot establish business necessity for a foreign language requirement merely by alleging that it would lose business if it were required to conduct business in English because a percentage of its clientele are fluent only in a foreign language or prefer to conduct business dealings in that language. The employer must provide such details as the portion of its foreign-speaking customers, how many of that portion merely prefer to speak the foreign language, and the reason why communication cannot be in English. See Prestige Cars Corp. , 88-INA-351 (July 17, 1989). But see Raul Garcia, M.D. , 89-INA-211 (Feb. 4, 1991), which indicates that in certain circumstances there is no need to document that the clients comprise any particular percentage of an employer's business.

e. Employer preference

An employer's preference that a language other than English be used at the workplace cannot support business necessity for a foreign language requirement where use of the language is not essential for the reasonable performance of the job duties. Thus, in Linda Hwang , 89-INA-360 (Nov. 16, 1990), business necessity for a Chinese language requirement for a live-in housekeeper was not established where the employers were fluent in English, their child was newborn, instructions for Chinese cooking could be given in English, in emergency situations English would be preferred for communication, and the responsibilities of answering the door and taking messages did not constitute a significant part of the employee's responsibilities.

  • Compare John S. Winnie Ng , 90-INA-134 (Apr. 30, 1991) (job duties of Child Monitor included teaching the employer's children to speak Chinese).

D. Communication with work force or suppliers

An employer may establish business necessity for a foreign language requirement where that language is used by the workforce or suppliers, and use of the language is essential to the performance of the job duties in a reasonable manner. For example, business necessity for a foreign language requirement has been established where the employee -

was to teach other employees new job skills,

Coker's Pedigreed Seed Co. , 88-INA-48 (Apr. 19, 1989) ( en banc ) (Portuguese and Spanish a business necessity where the job was to be performed in Brazil and Argentina and the job duties included teaching employees about scientific breeding skills).

was the link between customers and non-English speaking employees,

Young Cleaners , 88-INA-361 (June 28, 1989) (Korean necessary for an assistant manager where he is the link between customers and Korean-speaking tailors).

had to manage or otherwise communicate with the staff,

Golden City Chinese Restaurant , 89-INA-176 (Jan. 4, 1990) (Chinese a business necessity for a restaurant manager who must constantly communicate with the staff in Chinese).

Hollytron , 88-INA-316 (Sept. 28, 1989) (sales manager position for electronics retailer required Korean; substantial percentage of Korean employees).

Pacific Uniform Manufacturing Corp. , 89-INA-334 (Mar. 27, 1991) (manufacturing engineer required to oversee garment plants in Central and South America, to supervise the technical aspects of manufacturing, and to communicate with production personnel).

Spanish Broadcasting System, Co. , 88-INA-374 (July 17, 1989) (Spanish a business necessity for recording engineer of Spanish language radio station where 100% of work is conducted in Spanish).

or, had to communicate in the foreign language with suppliers and subcontractors, especially in regard to technical matters.

Tel-Ko Electronics, Inc. , 88-INA-416 (July 30, 1990) (reconsideration en banc) (the employer showed that a significant portion of its suppliers require communication in a foreign language in business dealings, and that the employee's duties involved communication with these suppliers).

Florida Ordnance, Inc. , 89-INA-106 (Feb. 14, 1990) (required Hebrew for Production Manager who must communicate with suppliers and subcontractors in Israel; 34% of production (with 10% being subcontracted to Israeli companies) is directly for use by Israeli government; technical memoranda written in Hebrew used -employer couldn't risk inaccurate translation; regular telephone conversation in Hebrew with business associates in Israel).

Pacific Uniform Manufacturing Corp. , 89-INA-334 (Mar. 27, 1991) (manufacturing engineer required to oversee garment plants in Central and South America, to supervise the technical aspects of manufacturing, and to communicate with subcontractors).

In contrast, business necessity is not established where the employer fails to document that the foreign language is needed in communication with the workforce or the home office.

  • Warehouse Food Market , 88-INA-366 (July 26, 1989) (although the employer stated that most of its employees speak Korean, it failed to establish that they do not speak English and that personnel manager needs to use Korean to communicate with employees or in telephone calls to Korea).

Generally, as to the persuasiveness of evidence documenting the essential nature of communication in a language other than English, see infra Division VI, G, 3.

E. Expansion into new markets

1. Applicability of Information Industries test

Employers sometimes contend that a foreign language requirement is justified by its plan to expand its business to new foreign markets. In such instances, the Information Industries business necessity test is applied. See , e.g. , Remington Products, Inc. , 89-INA-173 (Jan. 9, 1991) ( en banc ); Cable Car Photo and Electronics , 90-INA-141 (June 5, 1991); Advanced Digital Corporation , 90-INA-137 (May 21, 1991). The test is also applied when the expansion is into a new market within the United States. See , e.g. , Azumano Travel Service, Inc. , 90-INA-215 (Sept. 4, 1991).

2. Loss to existing business not required

Business necessity does not require a loss to an employer's existing business if the specific qualification is not required is too restrictive; the Act was not designed to prevent U.S. employers from expanding to foreign markets, and there is no legal requirement that the need to use the foreign language exist within the United States. Remington Products, Inc. , 89-INA-173 (Jan. 9, 1991) ( en banc ).

  • To the same effect Azumano Travel Service, Inc. , 90-INA-215 (Sept. 4, 1991) (in Azumano Travel , however, the panel made a distinction between a hypothetical expansion into a new market and an existing company with extensive experience that is expanding into a new area).

  • But see supra Division VI, C, 2, c in regard to cases holding that a potential loss of customers does not support business necessity for a foreign language requirement.

3. Strict scrutiny

Because of the potential for abuse, one panel has announced that it will apply strict scrutiny to documentation presented in cases involving foreign language requirements that are purportedly based on proposed plans for expansion into foreign markets. Cable Car Photo and Electronics , 90-INA-141 (June 5, 1991); Advanced Digital Corporation , 90-INA-137 (May 21, 1991).

  • The Advanced Digital panel noted that in Remington Products, Inc. , 89-INA-173 (Jan. 9, 1991) ( en banc ), business necessity for a foreign language requirement was established because it was documented that approximately forty percent of the people in the expansion area do not speak English, and that advertisements would be in the native language. The documentation included a number of internal and external documents, price lists, and foreign language advertisements. In Advanced Digital , however, business necessity was not established because the employer's documentation did not establish a specific expansion plan and the duties and language requirements were vague.

  • The same panel, however, found that the employer established business necessity based on expansion for a foreign language requirement in Azumano Travel Service, Inc. , 90-INA-215 (Sept. 4, 1991), where the employer's rebuttal included extensive telephone records, correspondence, invoices, reports and memos in English and Japanese; a breakdown of passenger bookings to Japan with specific information of airlines, dates, destinations, etc.; a letter from the employer's president; and a list of the employer's major Japanese-speaking clients. The strict scrutiny standard was not mentioned.

Thus, an employer must show that it has a definite expansion plan, and how the foreign language requirement arises from business necessity. Otherwise, an employer could simply tailor its job requirements to an alien's foreign language capabilities, send some letters of inquiry to an appropriate country, and claim that it plans to expand its business into that area. Cable Car Photo , supra ; Advanced Digital Corporation , supra .

F. Domestic service workers

For a child tutor of small children, the relevant "business" for the § 656.21(b)(1)(C) business necessity test involves the business of educating the children in the household, including teaching them a foreign language. Abedlghani & Houda Abadi , 90-INA-139 (June 4, 1991).

Where the employers adequately demonstrate that, given their desire to educate their children to be fluent in both English and the native language of their ethnic heritage, a foreign language requirement bears a reasonable relationship to the position of Child Monitor where the job duties include teaching the children to speak the foreign language. John S. Winnie Ng , 90-INA-134 (Apr. 30, 1991) (vacated and remanded upon another issue). If, however, the job duties do not bear a reasonable relationship to the language requirement, the requirement is a mere preference of the employer and is not justified by business necessity. See Linda Hwang , 89-INA-360 (Nov. 16, 1990), discussed supra Division VI, C, 2, e.

G. Evidentiary and procedural matters

1. Requirement that documentation be translated into English

Business necessity cannot be established through documentation which is not translated.

  • English Language Enterprises , 88-INA-295 (Nov. 28, 1989) (employer's evidence - documents showing the use of Arabic - failed to establish business necessity because it had not been translated for the Board, and there was no way to ascertain whether the documents actually discussed matters relating to the job: recruitment and counseling of Arabic-speaking students).

2. Documentation written in English

The Board has rejected, at least under the facts of the cases involved, inferences that documentation presented in English to support a foreign language requirement shows that the foreign language is not needed. Thus, in Tel-Ko Electronics, Inc. 88-INA-416 (July 30, 1990) (reconsideration en banc), the fact that some of the employer's evidence, presented to show that communication between the employer's offices and clients involves the use of a foreign language, also included cover memos written in English, did not weaken the employer's demonstration that the foreign language was justified by business necessity. Similarly, in Remington Products, Inc. , 89-INA-173 (Jan. 9, 1991) ( en banc ), the Board held that the fact that evidence submitted to show that a foreign language is needed to expand into new foreign markets was written in English does not indicate that the employer's products can be marketed without the recourse to the languages of the customers' countries.

3. Persuasiveness of evidence documenting essential nature of communication

To meet its burden of proof, an employer must submit evidence to support its assertion that fluency in a language other than English is essential. Splashware Company , 90-INA-38 (Nov. 26, 1990).

Business necessity is not established where the documentation does not support the employer's assertions that a high level of communication or interaction is required in the position offered. For example, business necessity was found not to be established in cases where:

telephone bills failed to establish that a major portion of business was conducted in the foreign language,

Advanced Digital Corporation , 90-INA-137 (May 21, 1991); Newport Pacific Realty & Investment Corp. , 88-INA-444 (Aug. 30, 1989).

the language required was not the language principally spoken in the countries of the employer's non-English speaking customers,

H. Stern Jewelers , 89-INA-89 (Jan. 19, 1990) (Portuguese not a business necessity where non-English speaking customers were principally European or Middle Eastern).

the employer had other employees who could make the foreign language communication,

H. Stern Jewelers , 89-INA-89 (Jan. 19, 1990) (Portuguese not a business necessity where 12 other employees could communicate with the home office in Brazil).

the employer admitted that the dialect required was not essential,

Spuhl Anderson Machine Co. , 87-INA-564 (May 18, 1989) (evidence that the employer stated that one applicant's knowledge of German, rather than Swiss-German, was sufficient showed that the employer's requirement of Swiss-German was more restrictive than necessary).

the region of the world in which the employer does business indicated that languages other than the one required would be equally appropriate,

Advanced Digital Corporation , 90-INA-137 (May 21, 1991) (need for "fluency with one Middle Eastern language" suggested that an applicant who spoke Hebrew, Arabic or Farsi would be equally qualified for the position).

the employer's case was based on mere assertions of counsel,

Splashware Company , 90-INA-38 (Nov. 26, 1990) (mere assertions from counsel did not document why accountant must write and speak in Cantonese and Mandarin).

See Chapter 11, II (Evidence) for a general discussion of the evidentiary weight of assertions of counsel.

or the employer's case was based on unsupported assertions

Lamplighter Travel Tours , 90-INA-64 (Sept. 10, 1991) (the employer's assertions were inadequate documentation that a travel tour manager needed the ability to read, write and speak Chinese and Spanish; requirements seemed tailored to the alien's qualifications).

Splashware Company , 90-INA-38 (Nov. 26, 1990).

But see Raul Garcia, M.D. , 89-INA-217 (Feb. 4, 1991), which recognizes that where a factor or claim is not capable of proof by documentary evidence, such may be provable by credible statements by the persons involved. In Garcia evidence showing that a significant number of patients had Spanish surnames was sufficient to support the employer's assertion that a Spanish language requirement for a social worker was justified by business necessity.

and the requirement appeared to be tailored to the alien's qualifications.

Lamplighter Travel Tours , 90-INA-64 (Sept. 10, 1991).

CONTINUE TO Chapter 32 Divisions VII to VIII .
CONTINUE TO Chapter 32 Divisions IX to X .

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