EN BANC BALCA DECISION
FURTHER RESTRICTS INFORMATION INDUSTRIES
STANDARD FOR BUSINESS NECESSITY

An en banc decision of the Board of Alien Labor Certification Appeals finds that evidence that a high percentage of an employer’s workforce does not speak English is insufficient to establish the business necessity of a foreign language requirement.

This case, Matter of Lucky Horse Fashion, Inc., 1997-INA-0182 (Aug. 22, 2000)(en banc), involved the position of Sewing Machine Repairer, the requirements for which included the ability to speak three Chinese dialects.  To justify the requirement, the employer submitted evidence that only 10% of its workforce can communicate sufficiently in English to convey a machine problem to the Repairer.  The remaining workers speak the dialects required.  BALCA did not dispute this evidence, but instead found that “the result of permitting an employer to establish business necessity for a foreign language, solely because all of its employees only speak a foreign language is to create a self-perpetuating foreign labor force that, as a practical matter, excludes all but a few U.S. workers….”

To reach this conclusion, BALCA parsed the holding in Matter of Information Industries, Inc., 1988-INA-82 (Feb. 8, 1989)(en banc), into a two-prong test for establishing business necessity: (1) whether the requirement bears a reasonable relationship to the occupation, in the context of the employer’s business, and (2) whether the requirement is essential to perform the job duties in a reasonable manner.  The Lucky Horse decision concentrated principally on the first prong, making clear that satisfying only the second prong would be insufficient to meet the business necessity test.

In analyzing the language requirement under this prong, BALCA looked first at the Dictionary of Occupational Titles (“DOT”) to see if use of a foreign language for the occupation “is supported,” noting that, if the DOT description supports such use, the occupation prong of the Information Industries test is satisfied.  However, here it was found that the DOT did not support the use of a foreign language, and that therefore “the employer’s burden of proof is compounded.”  That would mean, according to BALCA, that the employer would have to show the reasonableness of the requirement in the context of the employer’s own business.

In this regard, the decision drew “a very significant distinction” between the employer’s need to communicate with customers and contractors and the need to communicate with the employer’s own employees.   Although the decision does not make clear the legal reason for this distinction, it indicates in this context a concern that foreign language requirements based on the language skills of the workforce would serve to perpetuate the need for language skills.  The decision implies in a footnote, however, that a showing that the fact that the workforce does not speak English is the result of “lawful market forces” could result in a finding that the need to communicate with the employer’s own employees rises to the level of a business necessity. 

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