|In determining whether sufficient native workers exist to meet the needs of an employer who has applied for alien labor certification, the Department of Labor (DOL) must often determine whether the employer's job requirements are unduly restrictive. A finding that job requirements are unduly restrictive leads the DOL to deny the application for alien labor certification unless the requirements are justified by business necessity.
The DOL must only consider business necessity in three instances: (1) the employer's requirements are atypical for the job; (2) the employer requires a language other than English; or (3) the employer's requirements exceed those set forth in a the publication known as the Dictionary of Occupational Titles, which sets forth different jobs and the education or experience needed to perform those jobs. When one of these three circumstances are present and the DOL finds the employer's requirements to be unduly restrictive, an employer may assert that business necessity justifies the higher requirements.
Business necessity can justify otherwise unduly restrictive job requirements when two criteria are met. First, the employer's requirement, in the context of its business, must bear a reasonable relationship to the job. Second, possession of the job requirement must be essential to permit the employee to reasonably perform the job duties.
Generally speaking, employers who anticipate a DOL finding of undue restriction should provide detail to support their requests for labor certifications.
The business necessity test does not apply to job duties. However, employers are subject to some restrictions on the types of job duties they list in labor certification applications. For example, job duties must be written in such a way that allows the evaluating DOL officer to determine what the normal job requirements are and what range of education and experience are needed. Employers are also prohibited by federal regulation from requesting labor certifications for jobs that combine duties from different jobs except under specific circumstances.
Common Job Requirements and Undue Restriction
Two situations in which employers often argue that business necessity justifies undue restrictions are when they are planning to expand their business and when they require workers to live-in in a domestic situation. In the first situation, a desire to expand one's business can serve as a basis to impose restrictive requirements. Although an employer need not show actual business to support such a finding, it must articulate concrete expansion plans to warrant higher job requirements. In the second situation, an employer that wishes to justify a live-in worker based on business necessity must prove that living on an employer's property is an essential requirement of the job and is not the result of personal preference. In short, employers who wish to claim that business necessity warrants higher job requirements should be prepared to justify their claims with adequate documentation.
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