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Q: Jane, who works for a Japanese company, becomes pregnant and asks her boss whether she is entitled to child care leave after she has the baby. Suppose Janeﾕs employment contract does not cover this subject, is she entitled to child care leave?
A: Yes. Under the law concerning child care and family care leave, Jane is entitled to a maximum one year off to care for her child. Regardless of whether Janeﾕs employment contract included any provision on child care leave, this is a mandatory law and there is little room in an employer-employee contract to supersede it.
Japanese labor laws apply to all foreign workers here and it does not matter whether they are working in a Japanese company, a Japanese subsidiary of a foreign company or a branch office of a foreign company.
Please note that employees with an employment contract for a fixed period are not entitled to child care leave.
Q: If Jane's company had only five employees in total, would Jane still be entitled to child care leave?
A: Yes. The law came into effect in 1992 and there was a grace period of three years during which the law's application was excused vis-a-vis small enterprises of not more than 30 employees. That grace period has now expired and the law now applies to all working environments in Japan.
Q: The child care and family care leave law must be burdensome for small companies. Are those companies complying with this law?
A: Many of the large companies in Japan have already adopted child care and family care leave regulations as an attachment to their employment regulations, and I believe that such regulations are being honored. As for small companies, I suppose only a small portion of them have such child care and family care leave regulations and many such companies may not even be aware of the law's existence.
In my opinion, there seems to be a gap between the idealism expressed in the law and the real world. Usually, in the field of labor law, social environment changes necessitate a new law. If the social environment differs from what was expected under an old law, the people would demand a new law. Thus, labor laws come a few steps behind actual changes in society.
The child care and family care leave law, as well as other laws that were enacted recently to protect women (the child care and family care leave law, incidentally, applies not only to women but also to men), seems to have been prepared without strong demand from society. For a long time, Japan was regarded by the world as a nation that discriminated against women, The government probably wanted to change such an impression.
Nevertheless, a small company that cannot leave a position open for a period of one year (the company is not required to pay a salary to the employee taking child care leave) would be inclined to fire the employee and take the risk of being sued. The company would find, or make up, plausible reasons for the discharge other than those related to child care leave.
If the company should dare do this, the employee would be put in a difficult position. It is always possible for the employee to sue the company. However, Japanese courts are notorious for their slow procedures and may not be able to render the judgment in a short period of time.
Even. if the employee eventually gets a favorable judgment, the employee would only be reinstated to his or her prior position and have the amount of unpaid salary reimbursed. The employee would not be able to recover anything more than the actual damages he or she has suffered.
Unlike the United States where punitive damages are available, Japan's judicial system does not encourage lawsuits and it sometimes ends up encouraging wrong-doers.
In a closely integrated society like Japan, a lawsuit was considered nothing more than a necessary evil, and it has long been deemed inconsiderate to ask authorities (i.e., the courts) to settle a problem in this manner. But this notion is gradually changing.