Employees protected by labor law can be classified into the following categories: Under Japanese law, it is very difficult to terminate the employment contract for professional reasons of the employer, and Japanese courts have formulated the following general conditions to determine the validity of the dismissal: a) need for downsizing (for example, employer`s financial deterioration); (b) the need to choose dismissal over other available measures (e.g. whether the employer could have avoided dismissal by using other means, such as applying for early retirement); (c) the appropriateness of the selection of the dismissed worker; and (d) the appropriateness of the dismissal procedure (for example, whether the employer has provided sufficient explanations and opportunities for consultation). If an employee does not contest the validity of the dismissal, it takes effect; However, if the employee contests the validity of the dismissal, he is ultimately considered to be duly dismissed only if the court finds that the above criteria are met. If the termination of employment is found to be invalid, employees will be reinstated to their original position with retroactive payment for the period between termination of employment and reinstatement. In addition, an employer may not dismiss a part-time worker who is considered equivalent to an ordinary worker simply because he is a part-time worker. In addition to the general rules of the LSA, other provisions prohibiting discrimination include: (a) the Occupational Safety Act, which prohibits employers from discriminating against a person on the basis of previous occupation, trade union membership, race, nationality, beliefs, sex, social status and family origin; (b) Safety Act, etc. (ii) fixed-term workers whose duration of employment may not exceed three years (or five years in certain cases provided for in the LSA); The LSA defines a “worker” as a person who is employed in a company or office and receives a salary from a company or office, regardless of the type of occupation, and a worker is protected by Japanese labor law. Independent contractors or self-employed persons who enter into an outsourcing contract with a company and certain officers of the company, such as directors and officers, who may work at their discretion, are not protected by labour law because they are not considered “employees”. The distinction between an independent entrepreneur and an entrepreneur, on the one hand, and a worker protected by labour law, on the other, should be made on the basis of the person`s actual working conditions (and not only by the title of the post, the form or the designation of the contract), taking into account various factors, such as: (i) it is at the discretion of the person: refuse orders; (ii) it is under the control of a person and must follow specific instructions relating to his work; (iii) the place and time of work are fixed; (iv) other persons may carry out the work; and (v) he receives a salary in exchange for the provision of work. 1.4 Are conditions included in employment contracts? The two main sources of labour law are the Labour Standards Act (the “LSA”) and its implementing regulations, both of which set minimum standards for the conditions of employment contracts.
In addition, the Trade Unions Act (the “LUA”) regulates collective labour relations, while the Employment Contracts Act (the “LCL”) regulates individual industrial relations by establishing the principles according to which an employment contract must be concluded or amended through voluntary negotiations between an employee and an employer. The LCL also regulates other fundamental issues related to employment contracts. Other important sources of labour law are the Occupational Health and Safety Act, the Job Security Act, the Improvement Act, etc. the management of the employment of part-time workers and the law to ensure the proper functioning of posting companies and to improve the working conditions of posted workers (the “Temporary Work Services Act”). 8.3 Do employers have the right to conduct recruitment checks on potential employees (e.g., criminal record checks)? The LSA and its enforcement order set minimum conditions of employment, such as the following: An employee caring for a child of primary school age is entitled to one day off to care for an injured or sick child for up to five working days per fiscal year (or up to 10 working days if the employee has two or more primary school-age children).