A week’s worth of questions about paid leave

Paid leave. The long form in Japanese is nenji yūkyū kyūka; the short form is yūkyū. For workers, yūkyū is a day of “complete liberation from toil,” as one scholar put it.

The right to rest fully is vital in ensuring that workers enjoy long, healthy and anxiety-free lives. Unfortunately, some employers do all they can to discourage their employees from actually taking paid leave, setting up artificial obstacles, insinuating they are lazy and using peer pressure to keep them at their work stations.

I myself teach at a university, and many of my members at Tozen Union are also teachers. I find that teachers in particular find it very difficult to freely take paid leave, and many more are unaware of the government’s guarantee of paid leave. Foreign teachers in particular may be unfamiliar with the law.

On top of that, society places a heavy burden on instructors both because teaching is considered by some as the “sacred profession” (hence the honorific suffix sensei) and because students are paying customers. Then, of course, there is the trend to self-abnegation: Is your holiday more important than your students’ education? To that, I say that no teacher who never rests can teach properly. Nor is overwork the right model to present to your students.

For this month, I present to you a week of questions about paid leave. These are the questions that our union receives most often. (Caution: Please do not study these during your paid leave; you should be having a good time.)

Monday

My company demands that we give two months’ notice to use our government-guaranteed paid leave. Can they do that? How much notice must we give them?

Two months’ notice for paid leave? What kind of company do you work for? Unbelievable and unacceptable. Requiring two months’ notice defeats the whole purpose of paid leave.

Let’s start with the basics. Yūkyū is taken at the discretion of the employee. The right to choose the date of one’s paid leave is called jiki-shitei-ken, or the “right to designate the period.” This is a right that cannot be violated by the company, which in principle must recognize paid leave on the days chosen by the worker.

There is an exception, however. Article 39.5 of the Labor Standards Act stipulates that the employer can ask the worker to change the timing of paid holidays if and only if the company’s “ordinary operations are impeded.” This right is called jiki-henkō-ken, or the “right to change the period.” The expression Jigyō-no seijō-na un’ei o samatageru is a tricky one, since where and when it applies is not immediately evident. Suffice it to say for now, the bar is set quite high, meaning employers shoulder a heavy burden of proof when it comes to invoking this right to ask the employee to pick alternative leave days.

Legislation does not specify how much notice must be given — similar to the case with the right to strike — but let’s look at case law, in particular the Supreme Court ruling on March 18, 1982, in a case brought by a worker against his employer, Denden Kosha Konohana Denwa-kyoku, a telephone and telegraph company.

The plaintiff had called up 20 minutes before his 9 a.m. shift and told the graveyard shift worker that he wouldn’t be showing up that day and that he was taking paid leave. The employer refused to pay his wages that day, so he sued for them. The company’s work rules (shūgyō kisoku) stated that notice must be given “in principle before the end of the employee’s shift two days prior.”

Japan’s highest court determined that such a stipulation was gōriteki, meaning logical, rational or reasonable.

So, requiring two days’ notice for paid leave was ruled OK. But that does not mean that requiring two days’ notice will always be considered gōriteki. The judge took a good hard look at the circumstances of that particular workplace. This judgment applies only to that company. The courts could conceivably judge that even requiring a day’s notice is not gōriteki, or that requiring a week is indeed gōriteki, on a case-by-case basis.

But by no stretch of the imagination would two months’ notice be considered acceptable by a court in Japan, since it would dilute what is so great about yūkyū, i.e., that it reflects the will of the worker. Any company that demands two months’ notice to take paid leave is failing in its corporate responsibility to ensure smooth operations.

Tuesday

How many days of paid leave do we get, according to the law?

Paid holidays accrue as per the charts accompanying this article. The first applies to those working 30 hours or more per week, the second is for those working less than that.

Wednesday

Does the law guarantee maternity leave? How about paternity leave? How about child care leave?

Article 65 of the Labor Standards Act stipulates six weeks of maternity leave prior to birth and eight weeks after. The law does not guarantee paternity leave. Although maternity leave is unpaid, those who are enrolled in the shakai hoken health and pension program for employees are eligible for a childbirth allowance (shussan teatekin) equivalent to two-thirds of wages plus a childbirth bonus (shussan-ikuji ichijikin) of ¥420,000. Both parents can also take up to five extra days of unpaid leave to take care of preschool children.

Thursday

My company claims we get 20 paid leave days but some of them are normal holidays that we wouldn’t work anyway. Do these days count as paid holidays?

Paid leave is a holiday from a day you would ordinarily have to work. Days for which you have no work, including national holidays, cannot be called yūkyū or counted as yūkyū. Your company is misusing the term paid leave and exaggerating its generosity. If your contract states 20 days’ paid leave, that means you have 20 days leave on days of your choosing that are work days.

Friday

My company often rejects my application for paid holidays? Is that legal?

There are companies that reject paid holidays? Sigh. Let’s review! Article 39.1 stipulates that if you have worked five days a week for six months and have shown up for work at least 80 percent of the time, then you are allotted 10 days of paid leave. The employee must notify the employer from what day until what day she will take paid leave, because the worker has the right to designate, or jiki-shitei-ken.

Some companies mistakenly think that their employees must get permission to take paid leave. Many employers even make their workers fill out special forms to be submitted before permission is granted. But workers don’t require their bosses’ permission or approval because paid leave is their right.

The worker need not request paid leave, only notify the employer of the dates the right will be exercised. You can take off for any or no reason, and you certainly have no obligation to state a reason. Refusing paid leave is illegal. (Incidentally, many workers use paid holidays to cover sick days. Workers are not obligated to do so but there is no legal problem with it.)

As stated above, there is one exception when an employer can ask the worker to change the dates, and that is when the paid leave would “impede ordinary business operations.” This is the employer’s right to change the period — jiki-henkō-ken, a right that employers tend to use far too often. But provided the company does not invoke this right, the worker may take the paid holiday.

But what does it mean to “impede ordinary business operations”? That depends on the size of the operations, the nature of the business, the nature of the worker’s job, how busy the period is, the ease or difficulty of replacing the worker and the number of workers who want to take paid leave at the same time.

A famous ruling on this issue from way back came in the Toa Boseki case. The Osaka District Court ruled on April 10, 1958, that an employer could not invoke the right to change period — i.e., refuse paid leave — simply because it was a very busy time of year.

On July 10, 1987, the Supreme Court found that telegraph/telephone firm Hirosaki Denpo Denwa-kyoku had illegally invoked the right to change period — had illegally refused paid leave to a worker — because the company had not attempted to rearrange shifts so as to cover for the worker during the time off. This precedent established the obligation for employers to devise ways to ensure that workers can take paid leave at the time of their choosing.

Finally, I want to drill the following text from the Toa Boseki ruling into the heads of employers who try to deprive their workers of the precious right to take paid holidays at their discretion:

“If the employer’s right to change the period is recognized broadly, the worker faces the danger of losing the effective right to take paid holidays at his/her discretion. That is because such a situation will fall short of the essential nature of the system in which paid leave is not a gift granted by the beneficence of the employer, but rather intervention by the national government in the working conditions in order to legislate minimum standards.”

Saturday

I heard that an employee can choose when he or she takes paid leave, but my company fixes nearly all of them. Is that legal?

This is called keikaku-nenkyū, or planned paid leave. An employer may fix the dates of all but five days of the total paid leave allotment to its employees if and only if the employer has signed a rōshi-kyōtei (workers’ agreement) with a majority labor union, if such a union exists, or, if it doesn’t, an elected representative of the majority of workers (rōdōsha-no kahansu daihyō). Without such a written agreement, employees can take all of their paid holidays at their discretion.

Although the worker has discretion over paid leave, that discretion is limited to the extent that the company can invoke the right to change the period, and if a special agreement is signed with the workers.

Sunday

At my company—

Sorry, I’m on my day off.

Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union. She can be reached at tozen.okunuki@gmail.com. Labor Pains appears in print on the fourth Monday Community Page of the month. Originally published in the Japan Times.