スポンサーサイト

上記の広告は1ヶ月以上更新のないブログに表示されています。
新しい記事を書く事で広告が消せます。

--年--月--日 スポンサー広告 トラックバック:- コメント:-

at-will employment

A little more about employment at-will. In U.S., whenever a fired worker claims that his or her discharge was unlawful, whether under a statute or a common law doctrine, an employer may escape liability by demonstrating that the sole reason for the discharge was “good cause.” Defining “good cause” for termination is a formidable task but there have been attempts to do so.





The drafters of the Model Employment Termination Act (Model) defined “good cause” as meaning (i) a reasonable basis related to an individual employee for termination of the employee’s employment in view of relevant factors and circumstances which may include the employee’s duties, responsibilities, conduct on the job or otherwise, job performance and employment record, or (ii) the exercise of business judgment in good faith by the employer, including setting its economic or institutional goals and determining methods to reach those goals, organizing or reorganizing operations, discontinuing, consolidating, or divesting operations or positions or parts of operations or positions, determining the size of its workforce and the nature of the positions filled by its workforce, and determining and changing standards of performance for positions. National Conference of Commissioners on Uniform State Laws, Model Employment Termination Act Section 1(4) (August 8, 1991).

As you can see, the Model was drafted back in 1991, more than 15 years ago and I’m sure there have been further efforts to refine the meaning of “good cause” since then. I intent to share new findings as they come to my attention so stay tuned to WJA.



2007年01月11日 Employment Law トラックバック:0 コメント:0

selling your PTO

I mentioned earlier in “time off” about how you’re eligible to receive paid-time-off (PTO) (有給休暇) from work. Another issue that often pops up related to PTO is having your employer buy back your unused PTO when leaving the company (有給休暇の買戻し). This is a common practice in U.S. and many foreign companies (外資系企業) in Japan as well as some domestic companies (日本企業) apply similar practice.





This practice may be foreign to you if you’ve never seen or heard of it before, but in a nutshell, you’re employer will buy back whatever amount PTO you weren’t able to use up by the time you leave the company. Let's say after you’ve accrued 26 days of PTO you decide to leave your current employer because you landed on a better job. As also mentioned earlier in “resignation notice: 2 weeks US, 1 month Japan”, you give your employer 1 month advance notice about your intent to quit. But say there are only 22 business days in the month to come. In addition, your employer wants you to finish up the tasks you’ve been working on and also to train someone in your function as your successor (後任者). You expect this to take at least 2 full weeks, or 14 business days. What just happened is that you physically can’t use up your accrued PTO (of the 22 business days, you’d be coming in at least 14 days leaving you with a maximum of 8 days PTO you can use by the time you leave). Without company policy to buy back those extra PTO’s you’d end up throwing away the remaining 18 PTO’s that you’ve worked so hard to earn. Does that sound fair? Hell no, and that’s exactly why some companies installed PTO buy back practices.

Now, how much you can trade your unused PTO’s in for depends on each employer. Currently, Labor Standards Law (労働基準法) does not set any standards for PTO buy backs (it was never in the culture of Corporate Japan because employees were not expected to leave) and leave the practice up to employers. Some employers divide your annual salary by the number of business days in a year to arrive at your daily salary and deem that to be the value of your PTO for a day. Some employers use similar methods but multiply your daily salary by a certain percentage to calculate the value of your unused PTO. In many cases the details are written in your employer’s employment handbook (就業規則) so you may want to obtain a copy of it from your HR. Labor Standards Law requires that employment handbooks be accessible, at all times, by employees.

Was this info helpful? 人気blogランキングへ







2007年01月03日 Employment Law トラックバック:0 コメント:0

you're fired! not!

“You’re fired!” reflects America’s at-will employment doctrine (自由雇用主義). In U.S., absent statutory or contractual restriction (法令または契約による制約がない場合は), an employee or employer can terminate the employment relationship at any time, for any or no reason, with or without notice (雇用主は被雇用者をいつでも、どのような理由でも、予告の有無を問わず、解雇することができる). Therefore, employers have the power to control its workplace and workforce by terminating employment relationships at will. In turn, employees retain the freedom to resign if better employment opportunities came by or if working conditions became intolerable.





This concept was introduced by H.G. Wood’s treatise on the master-servant relationship articulated in 1877. Woods wrote that “With us the rule is inflexible that a general or indefinite hiring is prima facie a hiring at will (一般的または期間の定めのない採用は自由雇用と推定されることは当然であり), and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof (もし被雇用者がそれを年間契約と解したい場合、それが年間契約であることを彼自身が立証する必要がある). A hiring at so much a day, week, month, or year, no time being specified, is an indefinite hiring, and no presumption attaches that it was for a day even, but only at the rate fixed for whatever time the party may serve (日間、週間、月間、年間、または期間の定めがない採用も、無期限の契約であり、その契約が1日であることすら推定することはできず、ただ、決められたレートによって必要な期間だけと採用したもと解される).” (H. WOOD, MASTER AND SERVANT § 134, 3d ed. 1886) Despite being challenged and negated at times, this rule has since been the primary basis for what constitutes the at-will employment of today. Various reasons have been suggested as to why U.S. courts supported this concept but most convincing is that the at-will doctrine fit the times (時代に適合した). Late 1800’s was a time of industrial revolution and the at-will doctrine reflected the ideology of laissez faire and freedom of contract.

Japan, on the other hand, denies employers’ right to terminate employment relationship at will. Labor Standards Law (労働基準法) Article 18-2 states that “a dismissal, where it is objectively unreasonable and is not considered socially appropriate, shall be deemed as an abuse of power by the employer and shall be held void.” As a result, employers are restricted their power to control their workplace and workforce through termination of employment relationships. In turn, employees are well protected by law. “You’re fired!” is often followed by “not!” as imposed by laws and court rulings.

Was this info helpful? 人気blogランキングへ







2007年01月02日 Employment Law トラックバック:0 コメント:1

compensation for not working

Fact: you may be eligible for cash benefits when you become unemployed.
Amount: 149,760 to 575,550 yen if you’re under the age of 30 and 149,760 to 852,000 yen if you’re between the ages of 30 and 45.
Conclusion: not a bad compensation considering you’re not working.





The primary purpose of employment insurance (雇用保険) isn’t to ensure that you’re employed at all times (wouldn’t that be nice) but to provide you cash benefits while you’re unemployed to alleviate financial hardship. So, when you become unemployed and meet certain conditions, you’re eligible to claim cash benefits.

The first of those conditions is that you’ve been covered by employment insurance (被保険者であったこと) for more than 6 months during the past year until you became unemployed. Most legitimate employers are registered with employment insurance so you’d be covered in most cases. The 6 months doesn’t have to be on a continual basis with the same employer. It can be collective (通算) from more than one employer (for example, 2 months from employer A and 4 months from employer B).

The second condition is that you’re not just bumming out. Public Employment Security Office (PESO) (公共職業安定所), government agency in charge of employment insurance, want to see that you have the will and the ability work (労働の意思及び能力). You can prove so by showing them that you’ve been to a few job interviews or by other means that shows you’re trying to find a job.

Now, the juice. For those under the age of 30, the minimum amount is 149,760 yen and the maximum amount is 575,550 yen. For those between the ages of 30 and 45 and that have worked more than 10 years for an employer registered with employment insurance, the minimum is 149,760 yen and the maximum is 852,000 yen. Where you fall within these ranges depends on how much you’ve been earning in you recent job. But best of all, these benefits are tax free!

Note
Because claiming benefits under employment insurance is complex and detailed, it is advisable to consult a Certified Social Insurance and Labor Consultant before taking any action that may affect you. Feel free to contact me at tkamii@kamii-holdings.com for referral to your local Certified Social Insurance and Labor consultant.

Was this info helpful? 人気blogランキングへ







2007年01月01日 Employment Law トラックバック:0 コメント:0

time off

Labor Law Standards (労働基準法) Article 39 requires employers to provide paid-time-off (PTO) (有給休暇) to their employees who have been employed, on a continual basis, for 6 months and have worked 80 percent or more of the required work days. This means that if you started with your employer on April 1, 2007, you will not have any PTO until 6 months later, October 1, 2007, provided that you worked 80 percent or more of your required work days. You really don’t have to worry much about satisfying the 80 percent threshold because a few sick days here and there won’t put you below that level.





The number of PTO days provided depends on how long you’ve been with the employer and also on your employer but the minimum given to you on your first year is 10 days. After another year of service, you’ll receive 11 days and then 12 days for another year of service. It then increases by 2 days for each additional year of service until it reaches 20 days (10, 11, 12, 14, 16, 18, and then 20). After that, you get 20 PTO days per year. Of course, the Labor Standards Law sets only the minimum standards so employers are free to give more PTO days than required by law. Many employers do so through their employment handbooks (就業規則).

Was this info helpful? 人気blogランキングへ







2006年12月31日 Employment Law トラックバック:1 コメント:0

上記広告は1ヶ月以上更新のないブログに表示されています。新しい記事を書くことで広告を消せます。