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Tuesday, Feb. 14, 2012
Firms have few grounds to refuse staff paid leave
By RYOKO MINAGAWA and MASAKO SUZUKI
Reader KA writes: "In a recent Lifelines column ("All employees in Japan are entitled to paid leave, period," Dec. 13) it was stated that all employees have the legal right to take paid vacation providing they meet certain basic criteria. Whilst that is legally correct, employers can often prevent paid holidays from being taken, stating that the business or staffing situation does not allow paid holidays to be taken until a distant time in the future. What can an employee do if an employer offers a number of excuses for not allowing paid vacation?
"I was told by my company that paid holidays will not be possible for at least six months, but I need to take some vacation before that time. In addition, I was told that perhaps I am too tired to work in my company if I require paid vacation. It seems that companies in Japan can manipulate both the employees and labor law for their own corporate gain. What can employees do to ensure that paid vacations are provided in a timely and equitable manner?
"In addition, despite a suicide in my company by a staff member who was working overtime in excess of 200 hours per month (yes, that's not a typo), staff continue to work excessive and damaging hours. The company management chose a staff representative to agree to additional unpaid overtime work and the labor office simply bowed to the will of my company.
"In summary, despite there being labor laws — e.g. for paid vacation and to regulate working hours — it seems that there is absolutely no enforcement. Companies can do whatever they want, even if it means driving employees to ill health or suicide. Please can you advize readers of The Japan Times what can be done in the face of such immoral companies who flout labor laws without fear of prosecution?"
1. Paid leave
As we said in December's column, all regular employees have the right to paid leave. However, many employees do face difficulties in exercising that right, as in KA's case, when companies raise various objections.
Some companies' concerns may be justifiable under the Labor Standards Act. For example, firms can refuse their employees' leave request if the timing would interfere with the normal operation of the company. However, if an employee's absence wouldn't adversely interfere with the firm's operations, a refusal to grant them leave would be illegal.
In such a case, employees can lodge a complaint with their labor standards office asking the office to make recommendations to the company. This could result in, for example, a transparent and straightforward system for assessing employees' paid leave requests being introduced at the company.
If the labor standards office approach fails and KA decides to take some leave without her employer's consent, the company may well impose a penalty such as a pay cut. If this happens, KA could challenge the legality of the penalty in court or at a labor tribunal. If the firm cannot prove that KA's absence significantly hindered the company's operations, the company will lose the case and have to pay up. If the case goes this far, it is very important that KA has assembled evidence of the illegal refusal of the paid leave in advance, such as emails.
2. Overtime work
If a written agreement on overtime work has been signed between the employer and employees and lodged with a labor standards office, the employer can ask employees to do overtime according to the conditions under the agreement and the Labor Standards Law. This law and the Standard regarding the Limits on the Extension of Working Hours state that the employer cannot make employees work more than 45 hours overtime per month. This means that KA's company was breaking the law by allowing her late colleague to work such ridiculous hours.
Also, since the employer is required to pay overtime wages at a rate no less than 25 percent over the employee's regular hourly or daily wage, KA should check that overtime wages are paid accordingly. If she finds that she has worked any unpaid overtime, there are various ways to win compensation, including reporting the claim to the labor standards office or through litigation. A labor standards inspector can also refer a case to the prosecutors' office if they believe there has been a serious violation of the law.
In addition, working with the family of her late colleague on a lawsuit claiming compensation for the death could lead to a fundamental change in working conditions at the company. KA could help the family by agreeing to give them information on working conditions at the firm or testifying in court.
KA can also challenge the legality of the agreement between the company and employees if she believes it was not properly concluded. To be valid, any such agreement has to be concluded between an employer and a labor union at the company or, in the absence of a union, a representative of the majority of employees. The representative has to have been selected in a democratic process and reflect the employees' interests.
If the employer chose the representative and concluded an agreement with that individual, KA can either complain about the faked agreement to the labor standards office or bring a case to court regarding unpaid overtime work or a penalty imposed due to refusal of overtime work on the safe assumption that the agreement is invalid. In this case, again, she should gather together as much evidence of the company's illegal behavior as possible.
Masako Suzuki and Ryoko Minagawa are attorneys with the Section of Legal Assistance for Foreigners at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area. TPLO lawyers address readers' legal concerns on the second Tuesday of the month. Website: www.t-pblo.jp/slaf. Phone: (03) 5979-2880. Send all your questions to email@example.com