Some feedback that I got in the last couple of days about my IBM Japan matter has me circling back a bit, because I have confused some readers. It’s a bit of a narrow path that is left for me when I blog about “heavy” issues. On the one hand, I can only make things so plain, and some of the readership really wants the legal points and details. On the other hand, I appreciate that others stop by for the Japan-side, America-side “mix”. So let me clear a few things up, and then I’ll stop for a while.
1) People seemed to think that I was saying that any American working in Japan is covered by United States anti-discrimination law. I did not say that. What I have been saying is that if your company is controlled by an American company, or by an American individual (that is, not a corporation, or one that is closely held), then you are covered under United States anti-discrimination law. The shorthand for this is “Title Seven” from the Civil Rights Act. But there are also age discrimination (“ADEA”) and disability coverages (“ADA”), too.
2) You must let an agency called the Equal Employment Opportunity Commission (EEOC) know about your claim before you can really do anything stateside. Ordinarily, you only have 180 days from whenever the discriminatory action occurred. But, depending on the state your Japan-side employer is connected to, you might have 300 days. (That’s the rule, and sorry if it’s confusing.) So what do you do? You go with 180 days regardless.
This means that all the possible discrimination that happened
to an American
who worked for an American-controlled company
prior to, say November 2010, is all water under the bridge. Even if you filed a “charge” with EEOC, you are too late[–unless you had filed a charge, of course. Do I have to state the obvious?] So you must apply the rule ahead of time!
Filing is free, by the way. But you will have to get the formal charge notarized at the Embassy.
3) You cannot bring any Japanese lawsuits or do any kinds of settlements in Japan before or during the EEOC investigative process. This is because of things called “issue preclusion” and “claim preclusion”. (In New Jersey, these two were combined as “entire controversy doctrine”.) If you do something in Japan involving an actual court (not a labor investigator), it’s very likely that the EEO will say that you have compromised any remedy that the EEO might obtain. So it’s likely they won’t do anything for you.
4) The EEO gets another 180 days to investigate your charge–or you can leave it with them longer, if they need the time. However, after that 180 days, you can pull the charge from them and file in U.S. District Court for the place where your employer’s parent, or where the American owner, is located or resides.
If you do file in U.S. (federal) District Court, you are always better off with a lawyer, if you aren’t one yourself. Many districts have “pro se” offices, for people who represent themselves, but they will still suggest you should have a lawyer. Make sure your lawyer knows to plead facts showing how the Japanese company is controlled by the American company. Also, nowadays, you really need to spell out how you were discriminated against. You really need to make it clear in the pleadings, where just a few years ago, the standard was more lenient.
5. I have mentioned this idea in the law of forum non conveniens (FNC). If you’ve been reading my posts, you remember that I mentioned about elegant bullshit. This is an example of elegant bullshit that was whipped up by Paul Hastings’ attorney who represents the parent IBM and the subsidiary IBM Japan. (I can give you the name, but you can just as well look him up. I think his associate is on this all, too, so I should say the “team” at Paul Hastings.)
Congress said that the anti-discrimination law applies outside of America (“extraterritorially”), and that the party who is responsible for that discrimination is the American parent. Now, the “home country” of the American parent is obviously America. The discrimination, obviously, must happen overseas. So how the heck would an extraterritorial claim ever be let in? What the PH attorneys are saying makes no sense. The court would be saying, “sorry, that extraterritorial discrimination happened outside of America, so you have to go to that other country’s courts!” Why would Congress have put that very protection for overseas Americans in the law?
See, elegant bullshit.
That’s not even getting into the fact that Japan has no jurisdiction over IBM USA–only the sub, IBM Japan. Moreover, IBM USA would not be the party that a Japanese court would say did the bad deed, since it’s doing business through IBM Japan. So there is no “adequate and available” forum.
However, New York has jurisdiction over IBM Japan due to something called the Tauza rule, and a case called Freeman v. Gordon & Breach. Alternatively, through that and a case called Frummer. But I’m getting into “heavy” now.
I included my Japanese labor law claims as part of the complaint, which the procedure rule says you’re allowed to do. I think it is a case of first impression in the Southern District of New York, but don’t hold me to that.
The main point of all this is: if things go bad for you in Japan, as they can from time to time, your only remedy might not be in Japan. It might also be in America.