IBM USA / IBM Japan update: no reconsideration on claim one, but none really sought to begin with.

I saw via PACER that Judge Seibel ruled on the May 5th motion for reconsideration, which I had mentioned starting here. (I was looking for interlocutory appeal or the ability to ignore certain implied rulings on Japanese labor law. The judge granted a motion for reconsideration.)

You recall that there was a Title VII claim, a violations of Japanese labor law claim, and a tort claim. As it read to me, the May 1st opinion had (at least) one interpretation of Japanese labor law (actually, two), where such a ruling—if carried out to the IBM Japan claim, would prohibit any relief. What was implied in the opinion is that the employer can write and rely on a contract that violates or misinterprets Japanese labor law, and—be it discriminatory or not—that that is acceptable. Or, to put it another way: assuming “at will” employment in Japan, and then interpreting the contract elements as an overlay to employment-at-will.

So, in this regime, a fixed-term contract can include a 30-day notice provision, even though it’s in direct violation of Article 17 of the Japan Labor Contract Law, which only allows for cancellation due to unavoidable circumstances. (Those circumstances are narrowly defined. According to the DPJ at that second link, Article 17 even extends to dispatch relationships where the receiving company has a change of plans.)

The other implied ruling on Japanese labor law is that regular employees do not have a 30-day notice provision in their labor contract (and maybe even, that the regular employee labor contract is somehow “different” except for the fact that there is no fixed end date). This is Labor Standards Law, Article 20. All labor contracts require the 30-days’ notice; the fixed-term contract, however, properly goes to the end of the contract. Premature termination is breach, unless there are “unavoidable circumstances”.

If you are following my story, you know that on March 7, 2008, I was offered and accepted new employment. Japanese law would recognize this as “sei sha’in” or regular employment. Any contract evidencing an employment relationship, and including a 30-days’ notice, would obviously be within that regular or permanent employment. It’s a question of law–not a question of fact.

Judge Seibel had said in the May 1st opinion:

It is clear from Article 20, that all the other Cognos employees had the 30-days’ notice provision in their contracts. It was either written in, or implied in law. However, even after some consideration of the matter, the Judge somehow does not believe that I was similarly situated. Either in February 2008, or at the latest after March 7, 2008. How was I not similarly situated prior to the transfer? Because the management in Australia claimed to have a different conception of what Japanese labor law is, when it came to me?

This concept of “adverse employment action”, which is one of ours, is exactly this sort of thing. Why does the judge seem to think that the management’s conception isn’t based off the fact they are dealing with a non-Japanese?

The judge now says that the reason for the Title VII claim dismissal was on “alternate grounds” as well — that I “had not plausibly pleaded that the circumstances under which [I] went from Cognos to IBM Japan involved discriminatory intent.” If the Americans were the ones, though, who were put in these situations where certain labor rights weren’t honored, then I’m not sure there isn’t “plausible” discriminatory intent. I don’t think each American has to face the same screwy situation, but simply that they didn’t get legal protections that they were entitled to, and that similarly situated Japanese did get.

But just at the root: isn’t the screenshot excerpt above clear, that if I show that the other employees of Cognos had 30-day notice provisions, then I wasn’t equally treated by IBM Japan?

I’m a bit disappointed, but only because it seems like the target is moving. The judge really seems to want to focus on the fact that the Cognos management felt they could create this 30-day “at will” regime in Japan, and regardless of whether that would even be legal in Japan, that it is simply an acceptable stance to take when employing someone in Japan–especially, a foreigner, it seems. Like, the fact that there would be rights implied-in-law and non-waivable is not part of the consideration—although you wonder if the same analysis would be entertained if it were Japanese-Japanese. And this concept that regular “status” is something that is “granted” by the employer–not by operation of law. This is Julie London Law, not Japanese Law.

The one relief in the order is that Judge Seibel is allowing a full presentation of Japanese Labor Law issues in the brief for the IBM Japan claim. I’m not restricted by Julie London Law, or some other invention that doesn’t appear in the Labor Standards or the Labor Contract Law. That is good.

What’s a bit scary is that in the various rulings, and in opposing counsel’s letters and briefs, you don’t see citation to actual Japanese labor law. Particularly, Japan’s a civil law regime, so statutes really are about all there are. The cases decided in Japan aren’t precedent in the same way they are in a common law system. It’s very statutory rule based.

I appreciate that Judge is trying to shoehorn the original (February 25, 2008) Cognos contract ( * ) into any subsequent changes that happened in my relationship with Cognos, and thereby justify what IBM Japan did. I am heartened, though, that she is not so fixed on Julie London Law that she would be willing to allow the Second Circuit (three appellate court judges that I get, as a right, and a review de novo) to start looking at the case.

( * ) – the original, February 25, 2008 document has its share of flaws, even before you consider that it could not apply to the employment relationship after March 7.

[Update: Someone pointed out to me, and they’re not the first, that it seems unusual that the EEOC and the judge “lets” the management make these “mistakes” and “misunderstandings” on key points where you might also find the discrimination. Yes, I know. It’s very Republican. When a management discriminates, it’s really that they didn’t see how their actions in the circumstance were discriminatory. And, then, later: “boo hoo!”, how they’ve been misunderstood. Because the management did not (allegedly) properly understand Japanese labor law, this is the cover for the fact that they were screwing with an American as a non-Japanese. Even worse, there’s the slight insinuation that because I did know Japanese labor law, that somehow, they were manipulated or at a disadvantage. The people don’t even consider that Cognos, with 21 years in Japan and an absent representative director who presumably had been management in Japan for some time, did know Japanese labor law. And not whether they “agreed” to contract modifications, but simply that they needed to produce a separate, fixed-term contract if they sought to impose whatever they sought for the March 7th position. I sought to have those pieces out, because I knew that the “old” has a tendency to resurface in Japan. I think they knew that you don’t fly someone up, like it’s Holy Confirmation, and have them “grant” regular employment. I think they just figured (them or the later IBM Japan ones) to sow enough confusion, and that would take care of matters. Hardly the victims.]


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