Gundlach v. IBM initial preliminary motions memorandum.

A memorandum opinion was out on PACER this morning, from Judge Seibel in New York. I think it will be a few days before it shows up on Google scholar. [Update 5/7/12: It is [also] available through Cadwalader.]

It was a partial victory. My IBM Japan claim is still there, and the related John Doe tort matter hasn’t been addressed. Unfortunately, I am being jammed on two topics. One is on what determines regular employment (permanent employment or sei sha’in) in Japan? I know I covered this in one of the briefs, but term-limited employment is only permitted under a safe harbor, and the employer has to meet the safe harbor. It is not a matter of the employer “according” sei sha’in as a privilege. It’s actually a right under the labor law.

The Julie London (IBM inside counsel) Japanese Labor Law has the company “treating as” or “recognizing” a regular employee, and this seems to be the yardstick that Judge Seibel went with. [They say, i]n effect, once you have had a term-limited contract (itself valid or not), you don’t get to negotiate away that limitation. This labor law only applies to foreigners, though. But it isn’t discrimination. Try to unravel that one.

As a result, there can be no adverse employment action, because you can never negotiate regular employment. I don’t know how the Second Circuit would feel about that, but that’s a ways away anyhow, if then.

The more pressing issues go to the discovery dispute, in that the company refuses to hand over information; and, in the remaining memorandum matter, has any facts to show the connection to New York, but has refused to divulge them. It’s been only what I can find on the internet.

I have to study this one more, but if the Seibel read on what Japanese labor law is for Americans, there will be a number of people Japan-side who suddenly will find themselves on term-limited contracts, that they can’t negotiate out of.

[Update: The trick will be, that if someone seeks to negotiate a contract without a term-limted, which is sei sha’in, you say, “but we still have the 30 day notice provision.” If you do that, it cancels out, at least for U.S. federal court purposes, the need for a “socially acceptable reason” for ending an employment relationship. It’s very easy, see? You say, “no time limit, but we still have the 30 day notice!” and it’s like Japanese Labor Law isn’t there.]

[Update #2: “initial preliminary”? You read that right. Chances are, there is going to be a number two.]

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