The qualifications of a worker to fill a position (whether the foreign worker hired via the PERM process or a domestic US worker) are a tricky subject throughout this process. When establishing the criteria, there’s a delicate balance to strike. On one hand, the employer needs a certain role filled and filled effectively. On the other, listing too many qualifications or requirements past the “normal” level for the occupation may cause the Department of Labor to object to the application and potentially even deny.
There are a number of cases on this issues that have come through BALCA over the last several years. Let’s look at one where the denial was overturned (ie. the PERM was approved) and one where the denial was affirmed (PERM remained denied). The overarching statement of law is this:
The regulation at 20 C.F.R. § 656.17(h)(1) provides that an employer’s job opportunity requirements, “unless adequately documented as arising from business necessity, must be thosenormally required for the occupation and must not exceed the Specific Vocational Preparation(“SVP”) Level assigned to the occupation as shown in the O*NET Job Zones.” In order to establish a business necessity “an employer must demonstrate the job duties and requirementsbear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.” 20 C.F.R. § 656.17(h)(1); see also Information Industries, Inc., 1998-INA-00082 (Feb. 8, 1989) (en banc). The burden of demonstrating a business necessity for job requirements arises when the requirements either (1) are not normally required for the occupation or (2) exceed the SVP Level assigned to the occupation. Brighterion, Inc., 2015-PER-00503, slip op. at 6 (Dec. 14, 2016). “The Board has long held that an Employer’s bare assertion of business necessity without either supportingreasoning or evidence is generally insufficient to carry an employer’s burden of proof.”
That’s a lot of information, but basically the gist is this: the DOL has a description for pretty much every job imaginable (that are commonly used across government functions - census bureau, BEA, etc.) and, if an employer goes past it with requirements, the burden is on the employer to show why it’s particular job in this role NEEDS those particular requirements met.
One way to overcome this is to get a third-party expert in your field to opine on this and say that the requirements the employer lists are necessary to that employees ability to fill the position. That happened here in the In Re Ness USA, Inc. case. That case followed the ideas from an earlier decision. Here is that quote:
There is not one way to show business necessity but, for example, it would behoove an employer if technical jargon were explained, opinions by experts were submitted and had explanation and reasoning, or parallels were made between duties and requirements. Third party opinions may also be very helpful. See La Catina Toscana, 2009-PER-00237 (Apr. 7, 2010).
On the other hand, what won’t work is the employer’s bare assertion that certain skills are necessary. This is the “we have always done it this way” method, basically. That won’t work. Here’s an example of a case where that was the contention, with predictable results.
When we think about this is the context of difficult-to-fill, more blue collar positions such as maybe janitors, factor workers, manufacturing employees, and so on, the issue becomes really what is truly necessary to state in ads. An example might be “ability to lift X-pounds.” On one hand, it’s useful to keep this in advertisements because potential applicants unable to meet it may choose not to apply, reducing the burden on the employer to contact them. On the other hand, the DOL may ask “is this requirement truly necessary?” And proving that can often be somewhat of a challenge.
I do not have a satisfying conclusion here, really. This is more of a discussion to flag and issue and, if it’s something that you (as an employer) thinks may come up in your case, flag it to your lawyer and work with them on it carefully before filing for the prevailing wage (ie. at the VERY start of the process), so that all items on file with the DOL will be both correct and accurate (most importantly), but also consistent with one another, so as to ensure predictability to the extent possible.
Originally from May 2019, published here: https://www.permlabor.com/blog/establishing-business-necessity-of-the-hired-worker