Still analyzing Judge Seibel’s initial preliminary objections memorandum, which should be out on Google in a few days.
Here are the magic words that destroy regular employment, according to the judge:
“[Removing the end date (to employment)] has no real meaning given that there is a notice period in the contract.”
Your 30-day notice period, which you get in addition to regular employment, now becomes something that makes your other protections “have no real meaning”. I could feel the throat glumps coming out of the other end of some e-mails last night. Soon, you know, there will be a series of written contracts throughout Japan, saying, ‘you have open-ended ‘contracted status’ and, of course, the 30-day notice period . . . ‘
That’s actually worse than what the current term-limited workers have, because, right now, they (virtually) can’t be dismissed ahead of the end-date in the contract. Period.
Is this appealable error? Well, yeah. It’s a ruling on Japanese Labor Law, wrapped inside of Title VII. But it isn’t “final”, final (c.f. Federal Rule of Civil Procedure, Rule 54(b)), because there are still the two other claims. [My standing note to lawyers using search engines or others: do your own homework!]
Just food for thought, though, to you several people who think you have unassailable regular employment. Especially, if you work for a U.S. multinational. You may have your supervisors saying what does and does not “have real meaning” under Japanese Labor Law. And you lose!
[Update: a 12(b)(6) ruling is reviewable de novo in the Circuit court.]
[Update #2: I mean, it’s just clear error. Pull out any commentary about Japanese Labor Law. Here, from Baker and McKenzie:
FIXED TERM CONTRACTS
Whether a contract is a fixed term or an indefinite length is important in Japan. A fixed term contract that is of questionable enforceability may be deemed to be an employment contract for an indefinite term. This means that, instead of automatically terminating at the end of the contract term, the contract will be deemed continuous, and normal justifiable reasons must be established to justify the termination of the employment relationship.
Compare Page 9 of the memorandum:
Plaintiff’s superiors merely stated that he felt “comfortable” removing the end date from Plaintiff’s employment contract only because “it ha[d] no real meaning” anyway, given that Cognos could still terminate him at any time with thirty days’ notice. [ ] This exchange demonstrates, contrary to Plaintiff’s argument, that while at Cognos even after March 2008, Cognos reserved the right to dismiss him and did not accord him permanent employee status. Continuation of the non-permanent status at IBM is thus not an adverse action.
The memorandum ignores the critical distinction in Japanese Labor Law between kikan no sadame no aru (term-limited employment) and kikan no sadame no nai (without term limit), by making reference to the notice provision, which is in every sei sha’in relationship by virtue of the Labor Standards Act.]
[Update #3: It's very unlikely that the supervisor felt the provision had "no real meaning", because at that time, the group was dealing with the union reps and law firm of my predecessor. I think those words were thrown in as a "backsies", figuring that I wouldn't realize the difference.]
[Update #4: "The provision for enrolling in social insurance. It has no real meaning." "The provision to be covered for unemployment. It has no real meaning." You see where this goes . . . The foreign employer just opts out of whatever they don't like about Japanese laws. ]