Yes, the employer can include a foreign language requirement if it is justified by business necessity. The regulation requires that a foreign language requirement be justified by business necessity based on the nature of the occupation, e.g., translator, or the need to communicate with a large majority of the employer's customers, contractors, or employees who cannot communicate effectively in English. Documentation necessary to establish such a business necessity is noted in § 656.17(h)(2).
Note: Needing to communicate with co-workers or subordinates who cannot effectively communicate in English and/or having a working environment where safety considerations would support a foreign language requirement have been added to the ways to justify business necessity for a foreign language requirement.
How do you know if the job description contains requirements beyond those considered normal for the occupation? Does informing the National Prevailing Wage and Helpdesk center (NPW HC) on a prevailing wage determination request that the job contains requirements not normal to the occupation meet an employer’s obligation to inform the Department of Labor of these requirements?
The job summary specific to the SOC/O*NET code and Occupation Title provided by the NPW HC on the prevailing wage determination is considered to identify the requirements normal to that occupation. Any requirements in addition to those listed in the summary will be considered not normal for the occupation and the employer should be prepared to provide proof of business necessity if requested by the Certifying Officer. These summary reports can be accessed at http://online.onetcenter.org. Even if the employer has informed the NPW HC of these requirements in a prevailing wage determination request, the employer must still inform the Department of Labor by correctly attesting on the Application for Permanent Employment Certification, ETA Form 9089/Questions H-12 or H-13. Additionally, if the employer has not accurately attested on ETA Form 9089 that there are requirements not normal to the occupation, the application will be denied whether proof of business necessity is available or not.