Gundlach v. #IBM motion for reconsideration update #IBMJapan

We are picking up from about here, earlier this month.

Opposing counsel responded yesterday, in a way that totally avoided discussing Japanese labor law. This seemed evasive to me, but it will be up to the judge. The problem for me, as my Japan-side readers can well understand, is that I am relying on Japanese law. After all, the job was in Japan.

The problem is that, in the memorandum opinion, the court (that means, the judge) picked up some made-up Japanese labor law of IBM’s Julie London.

I am relying on Labor Contract Law (LCL), Articles 16 and 17; Labor Standards Law (LSL), Article 20 and 32; and several others on specific points.

LCL Article 16 is the of the rule that an employer needs a “socially acceptable reason” to end an employment relationship. “Saving money” is not a socially acceptable reason, if the company is not in dire straits.

LCL Article 17 contains the safe harbor for a fixed-term contract. There can be fixed-term employment in Japan, but it must be done through a valid, term-limiting contract.

LSL Article 20 (notice it says LSL not LCL) contains the provision that employees are entitled to at least 30-days’ notice if a position is going to end. They get that AND the socially acceptable reason; that is, if there is no socially acceptable reason, the 30-days’ notice means nothing. The employment relationship continues.

LCL Article 17 does not provide for a 30-days’ notice, because the whole point of the fixed-term contract is that it binds both the employer and the employee. Ending on 30-days’ notice is breach, in that instance.

LSL Article 32 says that overtime should be paid on work over 40 hours in a week. There are some exceptions that can apply in some situations, but not in mine.

What IBM has previously submitted to the Court, and the EEOC in 2009 and 2010, has totally ignored these statutes; and, in some cases, they say the opposite of what the law really is. Well, I can’t litigate that. I can’t say, “OK judge, I am going to argue my case using law that Julie London made up.” And why should I, really? That’s why the judge, sua sponte, deemed my May 5th letter to be a motion for reconsideration. I suggested the issue was ripe to take to the appellate court–the Second Circuit. Working out what IBM is trying to pull again, now, is better than having it worked out by three new judges later.

These matters are all critical to those of you in Japan who read me on this issue. Rulings of Japanese law in federal court in New York are going to control in the Southern District of New York. If or when it goes to the Second Circuit, it would concern any case involving Japanese labor law in the whole state of New York, Connecticut and Vermont. Would it be precedent in Japan? No. But suddenly, you would see American companies operating there start to adopt the Japanese law “findings” of my case. You would start to see fixed-term contracts with short notice of termination dates. Things declared to “have real meaning” or not. Foreign employees would be less likely to negotiate regular employment, because they would find themselves bombarded with additional contracts and paper, with particularly contradicting text. You know the game.