DOL on Job Documentation Requirements

DOL on Documentation Requirement to Establish Business Necessity for Restrictive Job Requirement

Dear Mr. Adams:

This is in response to your letter of December 7, 1993, letter regarding documentation requirements to establish business necessity for an unduly restrictive job requirements.

Specifically, you inquire as to whether or not written assertions that are reasonably specific and indicate their sources or bases shall be considered documentation. The lead case on what constitutes documentation is, as you recognize, In the Matter of Gencorp (87-INA-659, Jan. 13, 1988, en banc). In that decision the Board of Alien Labor Certification Appeals answered the question of what constitutes documentation as follows:

We are of the opinion that where a provision of the regulations requires information to be furnished in a specified form, e.g., documentation of experience "in the form of statements from past or present employers," Section 656.21(a)(3)(j), the regulation controls. In the absence of such a specific provision, where a document has a direct bearing on the resolution of an issue and is obtainable by reasonable efforts, the document, if requested by the CO, must be adduced. In all other cases, e.g., where an employer is required to prove the existence of an employment practice or the performance of an act and its results, written assertions which are reasonably specific and indicate their sources or bases shall be considered documentation. This is not to say that a CO must accept such assertions as credible or true; but he/she must consider them in making the relevant determination and give them the weight they rationally deserve.

Certifying Officers have been encouraged to follow the guidance provided by Gencorp in processing applications for alien employment certification. We have discussed the issue you raised with the Certifying Officer in Chicago, and she indicated she will provide appropriate guidance to the Ohio Bureau of Employment Services regarding the question of what constitutes documentation.

I hope this information is helpful to you.

Flora Richardson

27MM4E03 4d1756.txt