A comment from a know-it-all reader.

Just the other day, I was giving you folks an update on the IBM Japan matter. If you notice, I rarely get comments along the lines of say, debito.org, but occasionally I do. So I allow a certain leeway that the commenter can have his or her opinion, as long as its all civil. Because of the nature of my topics, most of the comments I get come to my e-mail account. This is because it’s the kind of question or comment that goes to things like a personal situation. I do not like to talk about people’s personal stuff over the internet, and I do not like to bicker over the internet. So that is kind of the style of the blog, and has been for eight years.

So the other day, I get this comment that comes along, from “Charlie”, like this. He starts off with a here’s-where-you-blew-it! and then doesn’t even have the facts. And that whole first paragraph just sounds like a blowhard.

In some fantasy world, there are “Japanese litigators” who will go to bat for you all the way. But good luck finding one. Most bengoshi I met are in it for the money. Even the kinder-hearted ones like Hou Terasu, they want to charge you. And you better not have a complicated case. Or one where the other side can make it a complicated case, by starting the Japanese version of “well, you see this and then, this, and then mistakes and misunderstandings, and, then that . . .”

Charlie brings up the union(s), as if I don’t already know all the key players in the Tokyo foreigner unions, as well as a few regular Japanese ones. It doesn’t go like how Charlie says. The union really exists for its own membership, not to be a cheap legal service. I have blogged about this previously, but apparently Charlie does not read me every day.

The union does not want your employment dispute–even for a 10% cut of any settlement and access to their labor attorney–unless it means that you are going to go into your company and organize. Yes, for a Japanese person, they can often become same-day union members and get sympathy, and the ability to pressure a company to pay settlement money. I saw this first hand with my predecessor in the Cognos job. But this hardly ever happens with the foreigner community, and, if it did, you’d be seeing it broadcasted all over the expat internet sites. So here, Charlie is just full of shit.

I know of one case that happened like Charlie said, at Goldman Sachs, where there was a settlement. But the thing that flipped the company was that it was pre-Lehman Shock, and the employee had dirt about something GS was doing. So, you see, it is never as easy or cut-and-dry as Charlie suggests. But his post was written as if he had all the answers and I was this buffoon, so there you go.

In the second part here, Charlie does have the law right, 100% right. But it’s not crazy, in a country that does not have “at will” employment, that employees have a right in their job, and a right to a job with an employer. I think most of the developed world has some kind of employment standard like that.

So what is crazy is the fact that America continues with an at-will standard, when most other countries appreciate that the worker, in a weaker bargaining position, is entitled to some protection.

And then in the final part of the comment, the cynicism comes out. Charlie suggests that the people who Google his comment (as if I don’t have the right to moderate it) should find a Japanese attorney who cannot speak English (yes, that’s what he said) to help you, as foreign person, to get justice in the Japanese system. He also suggests that you “pretend” that you want to keep your job, because presumably this will up the big pile of dough the company is going to pay you, foreigner, as a settlement for you to give up your right to the position.

Totally lost in Charlie’s comment is the fact that the IBM Japan matter is a United States Title VII discrimination case. The Japanese law claim is a joinder to that.

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2 comments

  1. Charlie · September 22, 2011

    My previous comment was from personal experience with a Japanese zaibatsu, where I was a contract employee in form, but promoted into section- and then department-level management, managing Japanese employees in Japanese, taking pay raises and cuts just like the Japanese, so a seishaiin in practice.

    I also drew on the experience of a friend, a Japanese speaking American attorney who had shortly before my experience also gone through a layoff as a legal officer, from a smaller company.

    When my company tried to convince me to quit or renegotiate my contract in a way that would amount to renouncing my de facto seishaiin status, I asked an American attorney in Tokyo who I knew (a different guy than the guy above) for a referral. He worked for a large, expensive, international law firm that he knew I didn’t want to pay for, so he put me directly in touch with a Japanese labor litigator that his firm used on an outsourcing basis. The litigator dressed shabbily and shared an office (or a table is more like it) in a sort of legal co-op building in Tokyo, but he wasn’t there much since he spent a lot of his time in court. He was not a superstar lawyer, just an experienced practitioner.

    A coworker who was also being given the gentle shove put in touch with the independent union. The union was not the company union. The company union only handled the annual employee health check, as far as I could tell, and was not an advocate for employees in disputes. The union I contacted was an independent union with no connection with my company. There are several of these for different types of employees, including management level. These unions concentrate on employment disputes. I didn’t need to be a paying member, and they didn’t require that I join to get initial advice. I met with them twice, and paid them nothing in the end. It’s possible that their interest in me might have had something to do with my company (larger companies with a reputation to protect are easier to deal with) and my salary level. All I can say is that they were very helpful to me in my particular case. They gave me several reality checks on some unfruitful avenues that I considered.

    The introduction to the lawyer and the union were separate, and the fact that they had dealt with each other was coincidental. The attorney was not the union’s captive attorney, and his dealings with me were not as a union attorney.

    In addition to these resources I had the advantage of having an Excel file slipped to me by a second coworker detailing the deal he was offered for a buyout. Since he was a Japanese employee the company didn’t try to con him. So I had a number to go for, the number of years of salary that I knew the company would pay if pushed to the wall. This helped considerably on a psychological level in reducing stress. Even if someone in a similar situation cannot get such a file, simply knowing that seishaiin settlements in Japan are on the order of magnitude of multiple years of salary, not months or weeks, should help in negotiations.

    The litigator charged me about 15,000 yen in all. I used about an hour of his time, one meeting in the beginning, one phone call to get his take on the final settlement offer. His fee structure, had it gone to court, was about 300,000 yen up front, and nothing else until a settlement or judgment, and then a percentage. Since what I was seeking was in the 8-digits, multiple years of salary, for buying me out as a seishaiin, I felt this was cheap. I ended up not having to to pay it, because the advice gave me was all I needed to negotiate a settlement. It came down to getting an appointment with the jinji-bucho, laying the business cards of the attorney and union person on the table, explaining my understanding of the law, and asking for a number.

    Getting a proper negotiated buy-out helped me to get Hello Work money, which at the time was generous, a percentage of my salary. I hear that Hello Work payment levels and terms have shrunk in recent years, but it’s still worth leaving your company in a way that your former jinji-bu doesn’t throw up objections when Hello Work calls to verify your status.

    I realize that without the support network of attorney acquaintances and experienced co-workers I may not have gotten the introductions and leaked information that allowed me to go through the situation in a confident and stress-free manner, leading to a successful conclusion. Since I was able to triangulate information from multiple sources, I’m pretty sure that my experiences and understanding of the law, as laid out in this and the previous comment, are accurate.

    • hoofin · September 22, 2011

      Charlie, as I said above, you are absolutely right about the law.

      Hearing the story itself, it sounds to me, as you say, you got some lucky breaks besides finding out the law. I would almost guarantee you, that since this was years ago, you will not find that kind of situation nowadays. The Japanese are extremely uncooperative about acknowledging sei sha’in status of a foreigner—even though, by operation of their own laws, there are quite a few around Japan.

      If you consider the typical gaijin situation in Japan nowadays, the kind of eight figure yen deal that you relate above is really just a very rare thing. Much more likely these days is that the company will stonewall and delay, and then avoid and ignore. Especially with the internet, if people were getting eight figure settlements (for my non-Japan-side readers, this means $150,000 $130,000 or more), you would be reading about it.

      You are right on the law, but I will let the federal judge in New York tell me if Title VII does not apply extraterritorially, and to use FRCP 44.1 on the Japanese labor law matters.

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