Japan labor law made clearer.

I posted a link the other day to the University of Washington Law School’s Pacific Rim Law and Policy Journal.

In the past couple days, I have finally had a chance to study the one piece involving Japanese labor law, and I like it because it really explains the history and condenses a number of rules that we Japan-side expats have known are the actual laws, but that somehow don’t get applied to us in our situations.

Besides Title VII (an American discrimination provision), my case up in White Plains also involves Japanese labor law–so the ability to present concise material about the labor system is invaluable. Since 2008, there have been several of these publications, of which the recent University of Washington one is the best.

[More in a while.]

[Update: It used to be rather rare that you would find a clean statement in English as to what the law in Japan really is regarding regular employment and dismissals. Most of the commentary was by parties with a vested interest (like unions). Although they were accurate, they were not considered an academic source.

It looks like the 2008 Labor Contract Law did much to clarify the doctrine of abuse of right in dismissals, i.e. that an employer in Japan cannot simply fire or make redundant a employment who is on a contract without a fixed end date. This was done by writing the case law doctrine right into the statute books, at Article 16. (It had previously appeared as Article 18-2 in the Labor Standards Law, from 2003, so Article 16 was simply a recodification.)

Note 85 of the law journal article points to another source that elaborates on the abuse of power doctrine. In short, the law is the way it is in order to give the employee some negotiating power against the overwhelming advantage that an employer may have. If the employer acts outside of the law, the employee is still entitled to a claim of wages (no mitigated damages). The Japanese wrote the law that way to encourage employers not to screw around.

I don’t [see] why it isn’t more of an issue that Japanese will compel a foreign employer to honor their laws when a Japanese worker is part of the issue, but they don’t seem to care when the person involved is from overseas.

Also worth noting is that the 2008 Labor Contract Law presupposes that you’d have to use a court system to get a remedy. There is no mechanism for administrative enforcement. You can wonder how the dynamics of this must play out in the foreigner-versus-Japanese context.

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7 comments

  1. Joseph Hart · August 20, 2011

    I think you may find that the article to which you refer may have been removed. The link brings up a blank page. I’d be fascinated to read the “clarifications” to see how it might have applied to my situation had it been in effect then.

    • hoofin · August 20, 2011

      I bet you that it takes a while before the link connects to the site. I know that I am on broadband, and I had to wait a few seconds before I got it.

      I think your situation was one where you were “renewed” over several years (like 11 or 13 years). I don’t know how they got to argue that a series of renewals was not “regular employment”, because there was civil case law to that effect before the 2008 act.

      • Joseph Hart · August 20, 2011

        It was thirteen years. Actually they didn’t attempt to argue much of anything. They simply refused to discuss the issue at all, even with the General Union at first. Thereby hangs a long and interesting tale.

  2. Joseph Hart · August 20, 2011

    I must stand corrected……I just realized that it was a pdf, and was downloaded….I have it now. Please accept my apologies.

  3. Pingback: Three-and-a-half years of waiting (IBM Japan) | Hoofin
  4. C.R. · August 2, 2012

    Thank you for this. The PDF was informative. Wanting to know more, I purchased 解雇法制を考える as quoted (85) in the references. The paper cites the 2002 version, but in 2004 an expanded edition was released. Also, having a Japanese language reference is much more useful in discussion here in Japan.

    • hoofin · August 2, 2012

      That’s great that it was helpful. Of course, for me in New York, the English commentary is what is going to matter.

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