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Asia-Pacific employment law bulletin 2023

Japan

There are three key developments in Japanese employment law to note:

  • enhancements of the childcare and family care leave;
  • employers’ new obligations with respect to power harassment; and
  • changes to the calculation of overtime work premiums.

These amendments require employers to take necessary measures to update their internal policies and employment practices to comply with the new regulations. 

Changes to childcare and family care leave

One of the key developments in employment law is the changes to the childcare and family care regulations. The amendments to the “Act on Childcare Leave, Family Care Leave, and Other Measures for the Welfare of Workers Caring for Children or Other Family Members” (Act) took effect in 2022.

Under the amended Act, a new type of childcare leave, known as “Childcare Leave at Birth” was introduced. This new type of leave, which is essentially the Japanese version of “paternity leave”, allows employees (those who do not give birth) to take up to 4 weeks of leave, in 2 installments, within the first 8 weeks after birth. Employers are not required to pay salary during Childcare Leave at Birth; however, a special benefit which covers around two-thirds of the employee’s salary is provided through the statutory employment insurance.

In addition to the introduction of Child Care Leave at Birth, some requirements relating to the entitlements of childcare leave and family care leave were relaxed, as described below:

  • the requirement that fixed-term employees must have been employed for at least one year to become eligible has been removed (however, this requirement can be modified with a labor management agreement).
  • childcare leave in relation to a child up to the age of 1 can now be taken in up to 2 installments.
  • childcare leave in relation to a child aged 1 year old or older can now be reacquired in special circumstances even after the first childcare leave ended.

Finally, under the new Act, in an effort to encourage the taking of childcare leave, employers are now required to take at least one of the following measures:

  • conduct training sessions regarding employee rights on childcare leave;
  • set up a consultation system whereby employees are able to learn about their rights on childcare leave;
  • collect and provide information to its employees on case studies of other employees taking childcare leave;
  • notify employees of the company’s system and polices in place for taking childcare leave

HR personnel will be required to fully understand the changes listed above to appropriately conduct the necessary measures and respond to its employees’ requests for various types of leave. Additionally, employers will be required to update their internal policies regarding childcare leave and family care leave.

New obligations related to “power harassment”

Another important change to Japanese employment law in 2022 are the changes to the rules related to “power harassment”. Power harassment is essentially “workplace bullying”, and we have been witnessing an increase in the number of power harassment complaints from employees in Japan in recent years.

Under the “Act on Comprehensive Promotion of Labor Measures”, “power harassment” is defined as “any behavior that is based on dominant relationships in the workplace and exceeding the scope necessary and reasonable in the course of business which damages the work environment of the employer's workers”. According to the guidelines published by the government, power harassment includes behaviours such a:s (i) physical abuse; (ii) mental abuse; (iii) separation from colleagues; (iv) excessive demands; (v) insufficient demands; and (vi) invasion into private matters.

Starting from April 2022, all employers, regardless of their size, are required to take the following measures against power harassment:

  • explicitly define “power harassment” in their internal policies and make clear that power harassment is not acceptable, and make employees aware of such policies; and stipulate in internal policies that power harassment will be treated seriously and make employees aware of such consequence;
  • establish a system enabling employees to report power harassment issues and make employees aware of the system; and ensure that the person in charge of the reports is able to take appropriate action with regard to any harassment claims; 
  • promptly and accurately confirm any facts surrounding any harassment claims raised; take appropriate measures with regard to the harassed employee;after conducting fact-finding, take appropriate measures with regard to the harasser; and take measures to prevent any reoccurrence of such harassment; and 
  • take measures to protect the privacy of any person who reported harassment; explicitly state in internal policies that disadvantageous treatment such as termination against those who reported any harassment, cooperated with the fact-finding process, or used services related to harassment provided by the Labor Bureau is prohibited; and make employees aware of such prohibitions.

In response to these new rules, companies would be required to revise their work rules or other internal policies (including whistleblowing policies and procedures). Many companies would also find it useful to conduct power harassment training to their employees (especially managers) to prevent power harassment and to respond appropriately when power harassment is reported.

Increase in premiums for overtime work

The statutory overtime premiums for overtime work have been increased in Japan. Previously, the Labor Standards Act (LSA) required employers to pay overtime allowance with a 25% premium. However, with the recent changes to the LSA, the premiums have been increased to 50% for any overtime work done in excess of 60 hours per month (premiums for overtime work up to 60 hours in a month will remain the same, at 25%). Such changes have already been applied to large companies, but as of April 2023, all companies will be subject to the new premiums.

Companies will be required to amend their work rules or salary regulations to reflect this change and must make sure that their employees’ salaries are paid in accordance with these new rules.

Vanguard Lawyers Tokyo; Akiko Yamakawa, Hiroshi Yabunaka