Immigration Information Article: Prohibition on Unduly Restrictive Requirements: Business necessity, generally

Prohibition on Unduly Restrictive Requirements:
Business necessity, generally

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).