CHAPTER 32 Divisions IX to X
UNDULY RESTRICTIVE JOB REQUIREMENTS/ BUSINESS NECESSITY
Return to Main Headings .
Check Supplement .
Return to Chapter 32 Divisions I to VI .
Return to Chapter 32 Divisions VII to VIII .
TABLE OF CONTENTS
-
A.
Credit availability
-
B.
Education
-
C.
Experience
-
1.
Determination whether
requirement is unduly restrictive
-
2.
Determination whether
requirement is justified by business necessity
-
1.
Determination whether
requirement is unduly restrictive
-
D.
Hours of employment
-
E.
Knowledge/familiarity
-
F.
Licenses and certifications
-
G.
Memberships
-
H.
Skills
-
I.
Travel
-
J.
Trustworthiness
X. Employer's preference as a requirement
While the job requirements of use of a foreign language, a noncustomary combination of duties, and living on the employer's premises, are presumed to be unduly restrictive, other job requirements must be deemed unduly restrictive by the CO, see supra Division III, before the employer is required to establish business necessity, see supra Division V.
The following subdivisions discuss cases involving job requirements other than the three presumptively unduly restrictive requirements. The preliminary finding that the requirement is unduly restrictive and the secondary finding of whether the requirement is justified by business necessity are both discussed. The cases generally turn on the persuasiveness of the employer's documentation rather than the type of requirement; however, for convenience, the cases are organized by type of requirement.
Where an employer requires applicants to have credit with foreign manufacturers, rather than use the employer's credit, business necessity is not established without adequate explanation. Kids Collection, Inc. , 88-INA-94 (Mar. 13, 1989).
1. Determination whether requirement is unduly restrictive
a. Proper classification under the DOT
When determining whether an educational requirement is appropriate for the job offered, the position must be properly classified under the DOT.
- See, e.g. , Paras Diamond Corporation , 88-INA-283 (Mar. 22, 1990) (where the job offered involved the coordination of business activities between the foreign and domestic offices of the employer and required skills such as pricing, budgeting, and cost accounting, it is more accurately described as the higher position of "Manager," rather than simply "Importer"; accordingly, a college degree in Business was not an unduly restrictive requirement).
If there is uncertainty whether a position normally requires a certain educational degree, the Board will remand the case for clarification.
- See, e.g. , St. George Medical Multi-Speciality Medical Groups , 90-INA-240 (June 24, 1991) (remanded for a determination of whether the position of Medical Director normally requires, inter alia , a degree).
2. Determination whether requirement is justified by business necessity
To establish business necessity for an educational requirement the employer must establish that the requirement bears a reasonable relationship to the occupation in the context of the employer's business, and is essential to perform, in a reasonable manner, the job duties as described by the employer. See supra Division V, B. Where the employer's documentation establishes these elements, business necessity is established. The employer's documentation is persuasive where it establishes that the required degree:
-
relates directly to necessary job skills,
-
ARCO Oil & Gas Co.,
89-INA-295 (May 22,
1991) (business necessity established for the Ph.D.
requirement for a Senior Research Reservoir Development
Sedimentologist and Geologist, due to the specialized nature
and the responsibilities of the job).
-
Phoenix Electric Corp.
, 89-INA-23 (Oct. 23, 1989)
(civil engineering degree for project engineer).
-
provides necessary theoretical background,
-
Quincy School Community Council
, 88-INA-81 (Feb.
21, 1989) (
en banc
) (the employer established
business necessity for the requirement of a Master's Degree
in English for position as a a Second Language Teacher
because the degree provided necessary theoretical background
in teaching methods; however, this case also turned on the
fact that the CO failed to respond to the employer's
rebuttal evidence in the FD).
-
or is justified by the managerial nature of the position.
-
Knowlton Realty Ltd.,
88-INA-236 (May 30, 1990)
(B.S. in Real Estate or equivalent for executive vice
president of retail properties).
- Caras Diamond Corp. , 88-INA-283 (Mar. 22, 1990) (business degree).
Similarly, the requirement of certain course work is justified by business necessity where it directly relates to expertise required by one of the employer's most important customers.
- Waste Documentation and Control, Inc., 89-INA-229 (June 12, 1990) (the employer established that requirement of course work with artificial intelligence expert systems was supported by business necessity where such expertise was essential to the continuation of one of the employer's most important contracts).
Where, however, the documentation is inadequate, business necessity is not established.
- See, e.g. , All American Manufacturing Co. , 90-INA-198 (May 23, 1991) (M.S. degree in tourism/hospitality, above SVP requirement); Stan's Drugs , 89-INA-363 (Jan. 18, 1991) (two years of higher education in chemistry, biology or related sciences, for performance of ordinary retail store management functions); Joseph Nicoletti, Professional Land Surveyor ; 89-INA-277 (Dec. 19, 1990) (B.S. degree in surveying, above SVP, the alien was supervised by a licensed surveyor).
Thus, business necessity for a particular educational degree is not established where the employer:
-
fails to establish why an employee holding a similar degree
could not perform the job duties,
-
Atlantic Sales, Inc.,
88-INA-349 (May 24, 1989)
(en banc) (the employer did not establish business necessity
for requiring a degree in Mechanical Engineering where there
was insufficient evidence that requiring a major in
electronic technology was less appropriate for the job; the
employer did not show that the workings of its machinery or
the complicated form of its products were such that an
electrical engineer would not be able to perform the duties
required).
-
does not establish why an employee having experience in the
job skills could not perform the job as well as a person with the
educational degree sought,
-
Business Men's Insurance,
88-INA-78 (May 31,
1989) (en banc) (the employer did not show business necessity for
its requirement of one year of college for the position of
bilingual executive secretary where the employer failed to
show why experience in that type of job would not be
sufficient; the fact that the employer tested applicants on
the basic skills it alleged would be acquired in one year of
college weakened its argument that the requirement was
justified by a business necessity).
-
or merely asserts that another company requires a degree of
the same level of achievement (but in a different field) for a
similar position.
- Rustco Products Company , 88-INA-463 (Oct. 30, 1989) (the fact that another company requires a Master's Degree in Product Development for a similar position did not justify the requirement for a Master's Degree in Cereal Sciences).
Labor certification was properly denied where the employer required a certain grade point average but failed to document that similar firms generally required such an average. The panel also noted that the job offered was an entry level position and the fact that "[t]here is no reasonable obvious connection between a 3.5 GPA in actuarial studies and the mastery of the skill of communication that the Employer says it needs . . . ." A. Foster Higgins & Co. , 92-INA-390 (July 29, 1993).
1. Determination whether requirement is unduly restrictive
a. Determination whether requirement falls within SVP standard
The requirement that an applicant have a certain number of years' experience, or have experience in a particular field, is unduly restrictive if it exceeds the requirements mentioned in the DOT or those normally required for the job in the U.S. 20 C.F.R. § 656.21(b)(2).
-
See, e.g.
,
A & B Auto Glass
,
90-INA-321
(Sept. 17, 1991) (two-year experience requirement for glass
cutter and vehicle window installer was unduly restrictive;
SVP rating required only 3 to 6 months of experience);
Wilson Tire Company
, 88-INA-440 (Aug. 29, 1989) (two
years' experience as a tire setter; DOT required only 1 to 3
months);
Flakt, Inc.
, 88-INA-279 (July 28, 1989)
(requiring seven years of experience
in
Japan
was unduly restrictive).
- An odd combination of experience requirements, without sufficient documentation may indicate that the position is tailored to the alien's qualifications and is not available to U.S. workers. See , e.g. , Snowbird Development Co. , 87-INA-546 (Dec. 20, 1988) ( en banc ).
If the employer's experience requirement falls within the Specific Vocational Preparation (SVP) standard of the Dictionary of Occupational Titles (DOT), business necessity for the requirement need not be established. If, however, the experience requirement exceeds the SVP standard, a showing of business necessity is required. See Chapter 10 (Dictionary of Occupational Titles) in regard to the DOT and SVP standards generally.
b. Experience in related field or job offered
i. Consideration of whether related experience could be qualifying
Where the employer requires prior experience in the job offered, it must also consider whether a combination of education, training and experience would produce qualified applicants. Fischer Imaging Corp. , 88-INA-43 (May 23, 1989) ( en banc ). Failure to amend the labor certification application to include qualifying experience in a related occupation is a violation of § 656.21(b)(2). Enhanced Performance Associates , 87-INA-708 (Apr. 13, 1988).
Likewise, where the employer has required prior experience in a related occupation, it must also consider whether prior experience in the job offered would be qualifying. Danby-Palicio , 87-INA-530 (Mar. 21, 1989) ( en banc ). To the same effect Fresh Pond Shopping Center Trust , 90-INA-235 (Sept. 3, 1991) (tailoring of requirements to alien's qualifications).
ii. Experience in job offered includes experience in duties
A requirement of "experience in the job offered" includes experience in the job duties as described in item 13 of the ETA 750A, and not just experience in the job title. National Institute for Petroleum and Energy Research , 88-INA-535 (Mar. 17, 1989) ( en banc ); Integrated Software Systems, Inc. , 88-INA-200 (July 6, 1988).
iii. Alternative experience requirement
An experience requirement is not unduly restrictive where it is merely an alternative to experience in the job offered, and it is appropriate to and related to the job.
- See Best Luggage, Inc. , 88-INA-553 (Nov. 1, 1989) (an employer's alternative experience requirement of either two years' experience as a wholesaler or two years' experience as a partner in a wholesale luggage/handbag business was not an unduly restrictive requirement for the job opportunity of luggage/handbag wholesaler).
2. Determination whether requirement is justified by business necessity
To establish business necessity for an experience requirement the employer must establish that the requirement bears a reasonable relationship to the occupation in the context of the employer's business, and is essential to perform, in a reasonable manner, the job duties as described by the employer. See supra Division V, B. Where the employer's documentation fails to establish these elements, business necessity is not established.
- See, e.g. , Ronald S. Rusieki , 90-INA-207 (May 31, 1991) (requirement of teaching experience for general dentist position); Stan's Drugs , 89-INA-363 (Jan. 18, 1991) (requirement of two years of experience or higher education in chemistry, biology or related sciences); Norwood Drugs and Surgicals , 90-INA-237 (June 26, 1991) (no business necessity for requiring one year of experience for an entry-level position as a pharmacist intern); Hilton Hotels Corporation , 89-INA-20 (May 23, 1990) (the alleged justification did not match the requirement as it would provide no experience relevant to employer's business); Korea Central Daily News , 89-INA-88 (Dec. 18, 1989) (five years of Korean reporting experience was not essential to perform the duties of a managing editor/reporter of a Korean newspaper); S.W. Gore & Associates, Inc. , 87-INA-663 (July 14, 1989) (employer required experience teaching Transcendental Meditation, but employer said it only needed knowledge of TM).
a. Factors supporting business necessity
Business necessity for an experience requirement may be supported by documentation establishing that the skills needed to perform the job must be developed over time,
- California Graduate Institute , 88-INA-395 (Apr. 19, 1990) (one years' medical practice for research assistant; position required meeting and assessing psychological status of a variety of subjects -skills which "tend to be developed only through the experience of working with patients over a period of time").
the employer has had prior problems with employees who did not have practical experience,
- Quincy School Community Council , 88-INA-81 (Feb. 21, 1989) ( en banc ) (two years' teaching experience for bilingual English as a second language teacher; the employer submitted lengthy letter (not responded to by the CO) explaining experience was needed to insure theoretical knowledge grounded in real life experience; the employer had problems in past with teachers with only theoretical knowledge developing material inappropriate for their students).
the employer attracts and retains clients through the proven track record of its employees,
-
Knowlton Realty, Ltd.
, 88-INA-236 (May 30,
1990) (specific working experience with pension fund and
institutional investors, and substantial experience and
proven track record in development analysis of major retail
projects for position as executive vice president of retail
properties; pension fund and institutional investor
experience related to the employer's clientele; track record
in retail projects related to credibility of executive vice
president and clients are retained on this basis).
- But see infra Division IX, C, 2, b, i, for the proposition that enhancement of the business is insufficient to establish business necessity.
the job involves a high level of responsibility or difficult duties,
-
Promex Corporation
, 89-INA-331 (Sept. 12, 1990)
(three years' experience in the job offered or as a
bilingual secretary justified by multiple secretarial and
office management duties).
- In Broadway & 89th Street Prescription Center , 88-INA-346 (Mar. 2, 1990), a requirement of experience in the job offered (pharmacy helper) was justified by business necessity where the employee filling the position had to keep detailed records for insurance and Medicaid, and be familiar with the generic equivalents that the various companies may or may not accept. Moreover, the employee had to know chemical names and brand names of drugs and was expected to check prescriptions before delivery in the employer's absence from the store.
the business is complex or sophisticated in nature,
-
The Board found business necessity for the requirement
of 5 years' experience in the job offered (Senior Chemist)
in
National Institute for Petroleum and Energy
Research
, 88-INA-535 (Mar. 17, 1989) (
en banc
).
Considering the first prong of
Information
Industries
, the Board held that it is obvious that
"experience in the job offered" bears a reasonable
relationship to the employer's same occupation. Due to the
complexity and sophistication of the employer's business and
the supervisory nature of the duties, the Board also found
the second prong of the business necessity standard
satisfied.
- A & D Motor Sport , 89-INA-335 (July 12, 1991) (10-year experience requirement, including 5 years of supervisory and managerial experience, is permitted despite the fact that the cited SVP rating allows between 2 and 4 years of experience to be required, where the employer had documented the specialized nature of job and responsibilities when working with exotic automobiles through affidavits from disinterested third parties).
and there has been a significant change or advance in the state of the art in the employer's industry.
- Vac-Tec Systems, Inc. , 88-INA-353 (Aug. 2, 1989).
b. Factors not supporting business necessity
i. Enhancement of the business
The fact that a more experienced worker would be better, and would enhance the quality of the business, is insufficient to establish business necessity. Venture International Associates, Ltd. , 87-INA-569 (Jan. 13, 1989) ( en banc ).
ii. Alien gained experience on the job
The fact that the alien started in the position without the experience which the employer now requires tends to indicate that the experience requirement is not justified by business necessity, especially where the employer does not now show an infeasibility to train U.S. applicants. Brazilian Portuguese Pavillion , 87-INA-606 (Oct. 10, 1987) ( en banc ).
Such cases are usually analyzed under § 656.21(b)(6). See Chapter 1 (Actual Minimum Requirements).
Business necessity for an experience requirement is not established by a mere assertion,
- Aquarius Enterprises , 87-INA-579 (Mar. 24, 1988) ( en banc ); Fresh Pond Shopping Center Trust , 90-INA-235 (Sept. 3, 1991) (the employer's mere assertion that one year of experience in the related occupation of shopping center manager was inadequate documentation); Chapman Manufacturing Co. , 89-INA-303 (May 14, 1991) (unsupported statements insufficient to establish business necessity for 14 months of experience as a graphic designer to perform the duties of applying finish to furniture and developing new finishes); Patsy's Italian Restaurant , 89-INA-80 (Oct. 25, 1989) (one year of experience for pastry goods maker not justified by employer's mere assertions).
including assertions that the experience is needed because of the size of the business,
- Bixby/Jalama Ranch , 88-INA-449 (Mar. 14, 1990) (one year's experience as a ranch hand, size of ranch not sufficient justification).
that the business is highly specialized,
- Pique Nique, Inc. , 88-INA-452 (Aug. 30, 1989).
or that the requirement is the standard for the industry.
- Dr. Tse Y-Chun , 90-INA-413 (Nov. 19, 1991) (three years' experience required, was not justified by the mere assertion that such is the minimum requirement in the industry).
ii. Self-evident business acumen
Where the employer's business acumen in regard to an experience requirement is self-evident, the CO's assertion that the experience requirement is unduly restrictive is merely an unsubstantiated quess. Que Pasa Restaurant , 88-INA-260 (June 11, 1990).
d. Experience in the job offered
Where the job requirement is for experience in the job offered, prong one of the Information Industries business necessity test, see supra Division V, B, is always met because it is obvious that there is a reasonable relationship to the employer's same occupation. National Institute for Petroleum and Energy Research , 88-INA-535 (Mar. 17, 1989) ( en banc ). The employer, however, must also establish the essential nature of the requirement. See id .
ii. Limitation not justified if alternative experience would be qualifying
Requiring experience in the job offered is not justified by business necessity if experience in other jobs would qualify an applicant for the position. Enhanced Performance Associates , 87-INA-708 (April 13, 1988).
e. Residency requirement for graduates of foreign medical schools
A medical employer may require a residency training requirement for graduates of foreign medical schools where it documents that a solely foreign medical school education is not adequate.
- Highland Hospital of Rochester , 88-INA-569 (Nov. 16, 1989) (one year of residency training in an American university or clinical education in an American teaching school, if applicant was a graduate of a foreign medical school; the employer submitted extensive and persuasive evidence demonstrating inadequacy of solely foreign medical school education).
1. Determination whether hours are normal for the occupation
In order for hours of employment not to be considered unduly restrictive, they must be documented as normal for the occupation.
- See Kenneth R. Goldman , 88-INA-288 (May 31, 1990) ( en banc ), a matter involving labor certification for a Child Tutor in which the child to be tutored was only nine months of age at the time of the application, and in which work hours of 2:30 p.m. to 9:00 p.m. Monday-Friday, could not be justified by an argument that those hours conformed with the child's after-school availability because the child was not yet in school. Nevertheless, the hours could be normal for the position when it is taken in consideration that during the early years of a child's development a Children's Tutor's role presumably is closer to that of a Child Monitor than that of a Tutor, and hence, the normal working hours would probably encompass the times when the adults in the household are away from the house and when the child is most often awake. Since this factor had not previously been explored the matter was remanded.
Where an employer requires a domestic housekeeper to work excessive hours, at least one panel of the Board will apply the business necessity test for a live-in requirement stated in Marion Graham , 88-INA-102 (Mar. 14, 1990) ( en banc ) (originally issued without service sheet on Feb. 2, 1990).
- Thomas Goff , 88-INA-183 (June 20, 1990) (the employer required 13-1/2 hours Monday-Friday, 6 hours on Saturday, and Sunday availability).
The requirement that a domestic service worker be available to stay overnight on occasion is not equivalent to a live-in requirement which requires a showing of business necessity under § 656.21(b)(2)(iii).
- In Robert & Ellen Hoffman , 90-INA-451 (Mar. 20, 1991), the requirement that a child monitor "be willing to stay overnight on occasion when employers are out of town" (approximately once every three months) was not unusual, unduly restrictive, or the equivalent of a "live-in" requirement. Therefore, the business necessity standard of § 656.21(b)(2)(iii) did not apply.
Whether § 656.21(b)(2)(iii) is applicable depends on the frequency of the "occasional" overnight stays. Hoffman , supra .
A live-in requirement is similar to a requirement that the employee work a "split shift" (for example, hours of 7 a.m. to 11 a.m., and 4 p.m. to 8 p.m.). Several panels have applied the two-prong test for business necessity stated in Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ), in reviewing split-shift requirements found to be unduly restrictive by the CO;
- Stephen & Susan Levine , 90-INA-343 (Oct. 31, 1991); Lester Peutsch , 88-INA-258 (Feb. 4, 1991); Rose Millman , 88-INA-264 (June 20, 1990).
however, other panels have applied the one-prong "live-in" test of Marion Graham , 88-INA-102 (Mar. 14, 1990) ( en banc ) (originally issued without service sheet on Feb. 2, 1990).
- Mr. & Mrs. Bhow , 89-INA-338 (Mar. 7, 1991); Mrs. Mary Burrows , 88-INA-285 (Apr. 2, 1990). The Burrows panel, however, later applied Information Industries to a split-shift requirement in Rose Millman , 88-INA-264 (June 20, 1990).
Under both tests, employers have successfully established business necessity where the job duties indicated that the split shift was essential to the reasonable performance of the job.
-
In
Mrs. Mary Burrows
, 88-INA-285 (Apr. 2,
1990), the split-shift requirement was justified by business
necessity since one of the duties was to serve meals, and
that duty could only be performed when the employer was at
home (during the split-shift hours).
- See also Stephen & Susan Levine , 90-INA-343 (Oct. 31, 1991) (duty to feed children in morning and evening); Mr. & Mrs. Bhow , 89-INA-338 (Mar. 7, 1991) (duty to feed children in morning and evening); Lester Peutsch , 88-INA-258 (Feb. 4, 1991) (duties to serve meals in morning and evening); Rose Millman , 88-INA-264 (June 20, 1990) (hours that a married couple needs the services of a maid).
See also Chapter 2, II (Adverse Effect on Wages and Working Conditions) in regard to split-shift cases in which the CO raised § 656.24(b)(3) rather than 656.21(b)(2).
1. Determination whether requirement is unduly restrictive
A requirement of "knowledge" of a specific discipline is not impermissibly vague. Waste Documentation and Control, Inc. , 89-INA-229 (June 12, 1990). However, a requirement of familiarity with the specific policies of the employer may be found unduly restrictive.
- The employer's requirement that applicants be familiar with accounting practices of the Seventh Day Adventist Church was unduly restrictive. The requirement was found to be designed to require specific knowledge of the policies of the Church in respect to various financial matters. No evidence was submitted to show that Church policies were so different or unusual that an applicant must possess knowledge of them immediately. Minnesota Conference of Seventh Day Adventists , 89-INA-177 (Feb. 6, 1990).
If the CO does not challenge a knowledge requirement, it is proper to evaluate U.S. applicants on the basis of that requirement,
- Where the employer required "computer literacy" for the position of Computer Accountant, and that requirement was not challenged by the CO as vague or otherwise impermissible, the employer properly investigated a U.S. applicant's computer knowledge at the job interview. H & K Enterprises , 89-INA-219 (Oct. 30, 1990).
although the requirement is subjective, and requires strict scrutiny.
- Chapter 23, IV, K, 1 (Rejection of U.S. Workers).
2. Determination whether requirement is justified by business necessity
Where an employer requires knowledge of or familiarity with a product, system or procedure, the employer must adequately document the business necessity for that requirement. Employers have successfully documented, for example, requirements of knowledge of or familiarity with:
-
oriental dishes,
-
In
Sysco Intermountain Food Services
,
88-INA-138 (May 31, 1989) (
en banc
), the Board found
that the employer had shown business necessity for requiring
knowledge of Chinese dishes and restaurants for a position
involving the buying and selling of Oriental food products
to restaurants. The employer had provided letters from a
university professor, Chinese restaurant manager and
Oriental grocery importer, who indicated that such
experience was necessary to perform the job duties.
-
But
see
Golden Jade Restaurant
,
88-INA-342 (July 28, 1989) (business necessity not
established for knowledge of oriental dishes requirement
where the position was waiter/waitress).
-
computer programming,
-
First Alabama Bancshares, Inc.
, 88-INA-250
(Nov. 28, 1989).
-
and certain computer programs.
- Long Island Lighting Co. , 90-INA-423 (Dec. 10, 1991); National Hand Tool Corporation , 88-INA-475 (Apr. 19, 1990).
b. Employer's own product, system or procedure
i. In general, adequacy of documentation
Where the employer is requiring knowledge of or familiarity with its own products, systems or procedures, business necessity has been found not to be established, based on the inadequacy of the documentation presented, for knowledge of or familiarity with the employer's:
-
operations,
-
Tri-P's Corp., dba Jack-in-the-Box
, 87-INA-686
(Feb. 17, 1989) (
en banc
).
-
accounting practices,
-
Minnesota Conference of
Seventh Day
Adventists
, 89-INA-177 (Feb. 6, 1990) (familiarity with
accounting principles of Seventh Day Adventist Church).
-
overseas market,
-
Color Printing Unlimited
, 89-INA-55 (Jan. 19,
1990) (knowledge of African markets).
-
type of building it repairs,
-
Cal-Tex Management Services
, 88-INA-492 (Sept.
19, 1990) (requiring knowledge in medical building repair
and the underlying building codes was reasonably related to
the job, but it was not essential to the employee
performing, in a reasonable manner, the job duties where the
employer admitted that the alien was learning the building
codes while performing the job).
-
or computer system.
- Personnel Services, Inc. , 90-INA-43 (Dec. 12, 1990) (required familiarity with many computer languages); Danby-Palicio , 87-INA-530 (Mar. 21, 1990) (knowledge of a specific computer system).
If, however, the documentation shows that the requirement bears a reasonable relationship to the occupation in the context of the employer's business, and is essential to perform, in a reasonable manner, the duties as described by the employer, business necessity for knowledge of the employer's own product, system or procedure may be established.
- See , e.g. , Que Pasa Restaurant , 88-INA-260 (June 11, 1990) (the employer demonstrated that requiring experience in Mexican specialty beverages for the position of Bar Manager bears a reasonable relationship to the occupation in the context of the employer's business (a Mexican specialty restaurant and bar), and is essential to perform, in a reasonable manner, the duties as described by the employer (Bar Manager adjusts customer complaints regarding service, food, and beverages; trains and hires bartenders)).
ii. CO's reasonable request for information
If the CO makes a reasonable request for relevant information concerning the employer's requirement of knowledge of or familiarity with its own products, systems or procedures, failure by the employer to supply that information is a ground for denying labor certification.
- Personnel Services, Inc. , 90-INA-43 (Dec. 12, 1990) (the employer failed to respond to the CO's request that a copy of the consultant's contract, reflecting the types of hardware being used, be submitted).
iii. Existence of similar products, systems or procedures
Where an employer requires knowledge of or familiarity with its own product, system or procedure, it must prove that knowledge of or familiarity with similar products, systems or procedures, if they exist, is not sufficient for performance of the job.
-
Tri-P's Corp., dba Jack-in-the-Box
, 87-INA-686
(Feb. 17, 1989) (
en banc
) (employer failed to show
that a manager for a fast food restaurant could not perform
the job duties without familiarity with Jack-in-the-Box
operations (as opposed to some other fast food
restaurant)).
-
Harry's TV & Audio Service, Co.
, 88-INA-265
(Oct. 30, 1991) (where experience in similar products
appears to provide comparable background, the employer must
explain why such experience is insufficient).
- American Copper and Nickel Co., Inc. , 87-INA-556 (May 16, 1989) (employer required experience with its AEM machines, and not other companies' AEM machines; the employer's documentation failed to establish that proficiency in its system is different from other systems used in the industry).
Although a CO cannot simply guess about the transferability of skills,
- Que Pasa Restaurant , 88-INA-260 (June 11, 1990) (the CO's assertion that any qualified bartender could mix Mexican specialty beverages almost immediately was merely an unsubstantiated guess).
neither can the employer establish business necessity for requiring knowledge of its products with mere assertions that those products are unique.
- See , e.g. , Harry's TV & Audio Service, Co. , 88-INA-265 (Oct. 30, 1991) (the employer alleged that Sharp products were unique but failed to explain why).
iv. Transferability of management skills
F. Licenses and certifications
A driver's license may be required by an employer where the business necessity of the requirement is documented. For example, in Gary and Judith Karinen , 90-INA-73 (Jan. 25, 1991), business necessity for a driver's license requirement for a live-out child monitor position was established where the employer resided in a remote area, three miles from the nearest public transportation. See also Dr. William J. Raskoff and Dr. Carol Tabak , 89-INA-200 (June 21, 1991) (remanded for further fact-finding as to the restrictiveness of a requirement that applicants for a child monitor position own a car).
But see Chapter 2 (Adverse Effect on wWges and Working Conditions) regarding cases in which the CO challenged the requirement of car ownership on the ground that the requirement would have an adverse effect on the wages and working conditions of U.S. workers similarly employed in violation of § 656.24(b)(3).
2. Teaching certificates or licenses
Whether a requirement of possession of a teaching certificate or license is unduly restrictive may depend on state law. For example, in Spanish American Institute , 90-INA-435 (Mar. 18, 1991), a business school required applicants for the job of teaching English as a second language to have a state license for that work at the time of application, while the customary practice sanctioned by the state was to require only eligibility for such a license at the time of hire (with the license itself being applied for only thereafter). The panel held that the school's requirement was unduly restrictive. Under the circumstances, however, the panel remanded the matter to allow the employer to re-recruit on the basis of corrected requirements.
Whether a requirement of possession of a teaching certificate or license is unduly restrictive may depend on state law. For example, in St. George Medical Multi-Speciality edical Groups , 90-INA-240 (June 24, 1991), the panel remanded the case for further development of the record, explaining that the employer should be able to demonstrate that the Medical Director of its medical group practice customarily possesses a degree in medicine and that a state licensing body could decide whether the incumbent in the position of Medical Director must possess a license to practice medicine.
Similarly, when an employer does business with a foreign health care provider, whether a medical license from the foreign country is unduly restrictive may depend on the requirements of that country. For example, in Pay Med/Health Assistance for Travelers, Inc. , 89-INA-166 (Feb. 6, 1990), the employer established business necessity for a requirement that the employee have a Canadian medical license where the General anager of the Ontario Ministry of Health attested that such a requirement was necessary for this employer in order for the physician to obtain information from foreign health care providers that would be accepted in Canada and could be used for repatriation and follow-up treatment in Canada. Eighty percent of the employer's income was derived from the Canadian Health Insurance System.
Requiring a secretarial certification is not unduly restrictive where the employer will accept a certificate from any training program and no minimum training is required. Promex Corporation , 89-INA-331 (Sept. 12, 1990) (the CO had objected because the certificate together with an experience requirement exceeded the SVP for a secretary; however, the job duties exceeded those of a secretary).
A membership requirement must have some relationship to the job duties to establish business necessity for the requirement. For example, where an employer required membership in a diamond-buying club, but the position did not involve the purchasing or selling of diamonds, a panel held that the employer failed to establish business necessity for the requirement. ABC Diamonds, Inc. , 88-INA-64 (Sept. 21, 1989).
If an employer requires skill in a particular art form, it cannot establish business necessity for the requirement merely by asserting that it is needed.
- Architectural Models, Inc. , 90-INA-14 (Dec. 24, 1990) (the employer's assertions failed to prove business necessity for the requirement that applicants have skill in Islamic and Arabic decorative art for the position of model maker).
A minimum grade point average requirement is not unduly restrictive where the employer establishes that the required G.P.A. is not unusually high for the schools at which the employer recruits and that other firms have similar recruiting requirements.
- In Waste Documentation and Control, Inc. , 89-INA-229 (June 12, 1990), a requirement of a 3.5 G.P.A. in all computer science graduate courses was not unduly restrictive where it was established that the average G.P.A. for all computer science with a Master's Degree in the University of Texas was 3.93 in 1986 and 3.56 in 1987; at least a 3.0 was required to graduate with a Master's Degree; similar research and development firms require a G.P.A. of 3.50 even for undergraduate students.
If a certain grade point average is found to be unduly restrictive, the employer cannot establish business necessity without a supporting justification.
- Colorgraphics Corp. , 87-INA-600 (Nov. 20, 1987) ( en banc ) (the employer failed to establish that the requirement of a 3.5 G.P.A. in a bachelor's degree was justified by business necessity; without a justification, the requirement was arbitrary and unduly restrictive).
An employer can justify the business necessity of a requirement that the applicant have a high ranking in a sport by showing that the high ranking is needed to make it reasonably likely that the employee will gain television exposure for the employer's product.
- Connelly Skis, Inc. , 89-INA-233 (June 11, 1990) (the employer's requirement of a top ten ranking in the women's slalom water skiing for the position of promoting its water skiing products was found to be justified by business necessity).
Where an employer requires a certain level of typing proficiency, the employer must be able to explain why a certain typing speed was required,
- In Southeastern Capital Corp. , 88-INA-198 (Aug. 2, 1989), the employer gave no reason for requiring a typing speed of 80 words per minute (as opposed to some lesser speed), and thus there was no business necessity established.
and must be able to explain why the requirement is relevant to the position.
- In Inter-World Immigration Service , 88-INA-490 (Sept. 1, 1989), while the employer's proficiency requirements were normal for a secretary, the employer did not show why such a speed was required for an accounting clerk.
Business necessity is established for a requirement that a child monitor be "able to swim" where the employer has a home swimming pool and is adjacent to several unfenced pools. Mr. & Mrs. Mohammad Rezk , 89-INA-333 (Sept. 12, 1990).
Requiring extensive travel is not unduly restrictive when the job, by definition, actually requires extensive travel.
- ATM Enterprises of America, Inc. , 88-INA-142 (Sept. 21, 1988) (the job required foreign travel for thirty to sixty days at a time several times a year, for a total of forty to sixty percent of the work year).
The requirement than an employee be "trustworthy" is not an unduly restrictive requirement. Juanito N. Roque , 88-INA-4 (Apr. 5, 1988).
But see Chapter 23, S (Rejection of U.S. Workers) in regard to the difficulty of documenting the rejection of applicants on subjective grounds.
X. Employer's preference as a requirement
Section 656.21(b)(2)(iv) provides that an employer's preference in a job application is deemed a job requirement. Accordingly, in a case designated for special handling under § 656.21a, where an employer described a Ph.D. as "preferred" for the job (and where the advertisements did not make it clear that applicants without a Ph.D. would be considered), a panel held that the Ph.D. preference was actually a requirement for the position. Southern Connecticut State University , 90-INA-384 (Dec. 9, 1991).
RETURN TO Chapter 32 Divisions I to VI .
RETURN TO Chapter 32 Divisions VII to VIII .