Circling back to the Baker & McKenzie commentary on Japan labor contract law.

I’m sure I’ve given the site link before, but here it is.

I particularly want to focus on that key paragraph, which I included in my letter requesting the interlocutory appeal, which the judge sua sponte made into a motion for reconsideration:

This is the exact opposite of what occurs in America. In America, unless you have a contract, the employment relationship is “at will”.

In Japan, unless you have a valid, term-limiting contract, you have a right to the job, and a termination is illegal unless there is a “socially acceptable reason”, which is tightly defined by Japanese law.

Someone asked me, recently, how a contract might not be valid. Well, an obvious reason is if it is not properly executed. But also, if it runs afoul of statutes in the 1947 Labor Standards Law (LSL). Article 13 of the LSL makes that clear.

If a contract meant to be governed under the 2008 Labor Contract Law, a safe harbor law, isn’t valid, then the rule of law that applies is Article 13 of the LSL. This is echoed in Article 12 of LCL itself, where it refers to terms and conditions that are unfavorable to the employee being void. (Obviously, a term limit is permitted in a valid contract, under Article 17.)

Baker & McKenzie’s commentary is consistent with all the other English writers on the internet, as well as Japanese academic commentary that has been put into English. The default set of rules are the 1947 Labor Standards Law.

It’s been noteworthy to me, and I hope it is to the judge, that the opposition really hasn’t been citing Japanese labor law at all. Under Japanese labor law, they are the ones who have the burden to establish that there is a valid, term-limiting contract. The paperwork they presented was outdated, it was not signed by the representative director—because, in fact, the purported representative director didn’t even live in Japan. The paperwork did not describe the terms and conditions of the job; and purports to contract for a job that, at the time, was held by someone else.

Federal Rule of Civil Procedure, Rule 44.1, which comes into play here, says that a federal judge treats matters of foreign law as questions of law (not “questions of fact”). The judge is not limited to specific sources of law in determining what the law is. Treatises and commentary from international law firms doing business in Japan are sufficiently authoritative to clarify what the law is.

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One comment

  1. hoofin · March 22, 2013

    Reblogged this on Hoofin and commented:

    When the American tax season crunch lightens up, I want to talk more about how recent changes to the Japan Labor Contract act (some prospective, some not) are already being misinterpreted in the foreigner community there. This stuff never ceases, does it?

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