Labor concerns at foreign - affiliated companies
Teams of attorneys to deal with foreign-affiliated companies and their labor concernsLabor concerns are concerns that cannot be avoided by any foreign-affiliated company doing business in Japan. A foreign-affiliated company will need to deal with everything ranging from the production of the rules of employment and employment contracts to problems that arise between the company and its employees in accordance with labor laws enacted in Japan rather than the laws of its home country.
In order to prevent labor problems with employees and to effectively resolve any problems that might arise, it will be important to establish a framework to enable a Japanese attorney intimately versed in labor laws to promptly respond to your needs. At our legal profession corporation, teams comprising attorneys with expert knowledge of labor law are formed to deal with foreign-affiliated companies and their labor concerns.
English-language services with respect to rules of employmentThe rules of employment of a foreign-affiliated company operating in Japan will need to be prepared in compliance with labor laws in Japan. However, provisions that are conceivably problematic from the perspective of labor laws in Japan, such as provisions that allow an employee to be dismissed at any time, can be found in rules of employment that are based on principles and concepts rooted in the home countries of such foreign-affiliated companies.
On the other hand, if a commercially available template for rules of employment is used without modification, then such rules of employment could engender circumstances that are far removed from the actual circumstances of the given company and cause unforeseen problems despite being in compliance with labor laws in Japan.
In order to avoid such problems, we prepare rules of employment according to labor laws in Japan in a manner that reflects the actual circumstances of each company, and we then provide English-language services that are appropriately tailored to each foreign-affiliated company.
Services can be fully provided in EnglishWhere a labor concern involving an employee escalates into a dispute or lawsuit, the process of negotiations, the anticipated course of the lawsuit, and other pertinent points will need to be explained to the head office. In order to accurately deliver such explanatory briefings and reports according to labor laws in Japan, an attorney who is well versed in labor law must also be proficient in English and will need to be capable of accurately performing all duties for these purposes in English.
In order to deal with such labor concerns affecting foreign-affiliated companies, we developed a system under which our Japanese attorneys, who are well versed in labor laws, provide total support for dealing with labor concerns in English and Japanese.
The teams of attorneys that deal with foreign-affiliated companies and their labor concerns at our legal profession corporation are also able to fully handle meetings and all reporting functions at the Japanese branch offices of foreign-affiliated companies in English. In addition to providing support for telephone conference calls in English placed to management situated in the home countries of foreign-affiliated companies for the purpose of issuing reports and engaging in other such functions, we have also developed an environment for facilitating communications through email, Skype, and other online channels.
Direct responses can also be made to inquiries from the head officeWe can also field direct inquiries from the head office of a foreign-affiliated company in regards to labor concerns at a Japanese branch office. Of course, such inquiries would be fielded and handled in English by telephone, as well as through email, Skype, and other online channels.
The burden placed on Japanese branch offices can be lessened by having us directly take any questions a head office may have.
Dismissals on grounds of a lack of ability, a downturn in business, or other circumstances
Cannot dismiss an employee without groundsWhile foreign-affiliated companies may believe that they can dismiss an employee at any time and have, in some cases, carried out dismissals without special grounds at their Japanese branch offices, care must be taken because labor laws in Japan do not permit dismissals without special grounds.
Doctrine of the abuse of the right of dismissalAccording to Article 16 of the Labor Contract Act: “A dismissal shall, if it lacks objectively reasonable grounds and is not considered to be appropriate in general societal terms, be treated as an abuse of rights and be invalid.” This statutory provision is the basis of the doctrine of the abuse of the right of dismissal (rule of restructuring termination), which has rendered the dismissal of employees in Japan exceedingly difficult to undertake.
Dismissal on grounds of a lack of abilityAccording to judicial precedent, it is not sufficient to simply make a claim of poor performance for a dismissal on grounds of poor performance on the part of a regular company employee; the poor performance needs to be such that it is impeding corporate management or is otherwise bad enough to require the removal of the employee from the company (ACE Insurance case; decision by the Tokyo District Court on August 10, 2001).
Such dismissals made on the grounds of poor performance or of a lack of ability are generally not accepted without complications. For this reason, it is difficult in Japan to suddenly dismiss an employee who lacks the requisite ability. An employer will need to first investigate and implement measures to avoid dismissal, such as by studying the possibility of re-assigning or transferring the given employee to a post that better corresponds to the person’s skill set or by providing education and training.
However, where an individual is hired in mid-career on favorable terms with respect to wages and other benefits on the expectation that the person can become an immediate asset in the assigned role as a top-level management executive, senior engineer, or other high-ranking employee, it may be possible to determine whether or not the individual should be dismissed according to more relaxed standards from the standpoint of whether or not the duties required for the given position and the level of pay and benefits have been properly performed. (See the Nihon Suido Consultants case; decision by the Tokyo District Court on December 22, 2003.)
That there has been a trend marked by judicial precedents as described above with respect to the dismissal of an employee who lacks ability needs to be minimally understood. Thus, decisions must be made cautiously on a case-by-case basis.
Moreover, under labor laws in Japan, it is first necessary to investigate methods of arriving at an agreed termination before implementing strong measures in the form of immediate dismissal.
Dismissal for the purposes of reorganizationA dismissal for the purposes of reorganization entails the dismissal of an employee by the company according to the need to reduce the size of the workforce in response to a deterioration in operations. Care should be taken since it is not possible, under labor laws in Japan, to dismiss an employee only on the grounds that the operations of the company have deteriorated.
A given judicial precedent set forth a four-pronged test as follows to determine the validity of a dismissal for the purpose of reorganization (primary provisional disposition case involving National Westminster Bank; decision made by the Tokyo District Court on January 7, 1998). Thus, if a foreign-affiliated company wishes to dismiss an employee in Japan for the purpose of reorganization, it will need to carry out such a dismissal after satisfying the following four-pronged test:
Are personnel cuts necessary?
Have efforts been made to avoid dismissal?
Is the selection of persons to be dismissed reasonable?
Are procedures for the provision of explanations and the execution of consultations appropriate?
Are personnel cuts necessary?
The implementation of measures to cut personnel needs to be in response to a sufficient level of necessity in terms of corporate management, such as that which reflects a business slump affecting the company.
Have efforts been made to avoid dismissal?
A company is obligated, in compliance with the doctrine of good faith, to endeavor to avoid dismissal when cutting personnel by reducing costs (including by reducing compensation for executives and officers), suspending new hiring, reducing bonus amounts paid out, reassigning employees, temporary transfer, undertaking temporary layoffs, inviting employees to voluntarily resign, and implementing other relevant measures.
Therefore, when a company wishes to dismiss employees for the purpose of reorganization, it will be necessary to investigate whether or not the dismissal of employees can be avoided by achieving the same goals by means other than the dismissal of employees for the purpose of reorganization. In particular, if a dismissal for the purpose of reorganization is carried out without inviting current employees to voluntarily resign, the risk is high that such a dismissal will be found invalid because efforts were not made to avoid such a dismissal.
Nonetheless, since even procedures for a voluntary resignation will need to be implemented according to an appropriate method, it would be prudent to consult attorneys on the procedures for inviting employees to voluntarily resign when carrying out a dismissal for the purpose of reorganization.
③ Is the selection of persons to be dismissed reasonable?
In selecting persons to be dismissed, a company will need to define objective, reasonable criteria and apply them in a fair manner. For this reason, dismissals for the purpose of reorganization for which criteria have not been defined and dismissals for the purpose of reorganization for which criteria have been determined to lack objectivity or reasonableness have also been found to be invalid according to judicial precedent.
Nevertheless, since it is difficult to determine what does or does not constitute objective, reasonable criteria, it would also be prudent to consult with an attorney in advance with respect to such criteria.
④ Are procedures for the provision of explanations and the conducting of consultations appropriate?
A company is obligated, in compliance with the doctrine of good faith, to provide the affected labor union and employees with a satisfactory explanation of the necessity and details of a dismissal for the purpose of reconstruction; the company shall engage in consultations on such matters in good faith.
Therefore, when a company wishes to carry out a dismissal of employees for the purpose of reorganization, it will be necessary to secure an opportunity to provide employees with a proper explanation. Carrying out a dismissal for the purpose of reorganization without setting up such an opportunity is associated with a high level of risk.
Company handling of new-type depression and other mental health conditions
New-type depressionThe number of younger employees dealing with new-type depression as a mental health issue has been on the rise in Japanese companies. Whereas conventional depression is marked by the placement of blame on oneself for the inability to work, new-type depression is characterized by the placement of blame on the company in the belief that problems lie with one’s superior or company as part of one’s surrounding environment. Furthermore, one typically suffers from new-type depression only during work, such that one would be perfectly fine outside one’s workplace and might even be able to use one’s vacation time to go on a trip.
Supreme Court ruling affecting sufferers of mental health disordersOn April 27, 2012, the Supreme Court handed down a ruling in the HP Japan case. In its ruling, it indicated that a company, in dealing with an employee who had been absent for an extended period of time due to a psychological disorder, should (1) have a health checkup conducted by a psychologist, (2) investigate the idea of imposing a suspension after recommending a course of treatment where necessary in accordance with the checkup results, and (3) keep abreast of subsequent progress. The Supreme Court also indicated that a company could not impose disciplinary action in the form of an advisory discharge without first taking the aforementioned actions.
In this way, even Supreme Court decisions require that companies deal with sufferers of mental health disorders in a careful manner. Therefore, it is important that companies ascertain the health of their employees to a greater extent than before and necessary that companies realize anew that the act of dismissing a sufferer of a mental health disorder without giving it much thought is fraught with significant risks.
Investigating leave-of-absence provisionsUnlike those who sustain a bone fracture or other such physical injury, many sufferers of mental health disorders may not become completely cured but are able to take a turn for the better or might undergo repeated relapses. Therefore, measures as set forth in rules of employment based on the distinctive attributes of sufferers of mental health disorders are required.
On this point, it should be noted that, while there are many companies that stipulate leave-of-absence provisions for non-occupational illnesses and injuries within their rules of employment, leave-of-absence provisions that are not based on the distinctive attributes of sufferers of mental health disorders and that do not account for sufferers of mental health disorders can be found in practice. Measures for leave-of-absence provisions that take into account the emergence of sufferers of mental health disorders in the context of modern corporate management in Japan, where even new-type depression afflicts people, are essential.
Specifically, provisions that reset the term of a leave of absence upon recovery subsequent to the expiration of the term of a leave of absence and that enable a leave of absence to be taken for the same term in the event of a recurrence are problematic in light of the distinctive attributes of a sufferer of a mental health disorder in the sense that a mental health disorder is prone to frequent recurrence. Thus, if the symptoms of a mental health disorder tend to manifest over and over again, then it would be advisable to amend the leave-of-absence provisions in place in order to have the previous term of a leave of absence added to the term of a leave of absence taken after a recurrence.
Furthermore, it will be necessary to study the possibility of stipulating provisions to limit the number of times a leave of absence can be taken for the same or similar non-occupational illness or injury to one (or other such finite number).
Depending on the company, the right to order a leave of absence might reside with the company, applications to take a leave of absence might be made by employees, or some kind of blending of such rights and functions with respect to leaves of absence might be in effect. However, the right to order a leave of absence should reside with the company given that the purpose of a system that allows employees to take leaves of absence for non-occupational illnesses and injuries is reflected in the reprieve from dismissal that is effectively granted.
Handling of sexual harassment by the company
Sexual harassment refers to the suffering of some disadvantage by an employed worker in terms of their working conditions by reason of said worker’s response to speech or conduct of a sexual nature in the workplace or the suffering of some disadvantage by said worker in the working environment due to said speech or conduct of a sexual nature (Clause 1 of Article 11 of the Act on Securing, Etc., of Equal Opportunity and Treatment Between Men and Women in Employment).
The Act on the Securing, Etc., of Equal Opportunity and Treatment Between Men and Women in Employment mandates that the business owner implement measures to deal with sexual harassment as required for the management of employment. The specific contents of the measures to be implemented and examples of such measures are presented in Item 9 of the corresponding guidelines. An extracted portion thereof is outlined below:
1. Development of a system required to appropriately deal with sexual harassment according to consultations (inclusive of complaints): ･Set up a consultation office in advance; ･Enable persons in charge of the consultation office to appropriately deal with sexual harassment according to contents and circumstances.
2. Prompt, appropriate ex post facto handling of sexual harassment in the workplace: ・Promptly and precisely verify the facts; ・Where facts cannot be verified, properly implement measures applicable to the perpetrator and victim.
3. Implementation of measures for the prevention of recurrence
Power harassmentOn January 30, 2012, a report summarizing the results of an investigation conducted by the Working Group for the Roundtable Conference Regarding Workplace Bullying and Harassment of the Ministry of Health, Labour and Welfare was released.
“Workplace harassment” was defined in this report as “any kind of behavior in which a person abuses a superior position in the workplace, such as in terms of occupational status or human relationships, to inflict physical pain or emotional distress on coworkers or cause the deterioration of the working environment beyond the appropriate scope of business.”
In addition to the actions of a supervisor toward a subordinate, this concept of power harassment includes any interactions between seniors and juniors and between colleagues of equal standing and the actions of a subordinate toward a superior. The notion of superior position goes beyond occupational status to encompass human relationships, the possession of expert knowledge, and other variables by which an advantage may be enjoyed.
This report, as authored and issued by the Working Group, identified the following types of behavior that could constitute workplace power harassment:
① Perpetrating an assault or inflicting bodily harm (physical abuse);
②Issuing a threat, engaging in defamation, issuing an insult, or using severely abusive language (mental abuse);
③ Isolating the victim, treating the victim as an outcast, or ignoring the victim (isolation from human relationship);
④Requiring the victim to engage in tasks that are clearly unnecessary for operations or infeasible or impeding work to be carried out by the victim (excessive demands);
⑤Ordering the victim to engage in low-level work that is not operationally reasonable and that is far removed from the person’s skills and experience or failing to assign the victim any work at all (providing too little work or no work at all);
⑥ Intruding on personal affairs to an undue extent (encroachment upon the person).
In addition, even if physical abuse, as referred to in (i) above, were tied to the execution of operations, it would not be possible to claim that such abuse comes within the “appropriate scope of business.”
Moreover, as mental abuse, as referred to in (ii) above, and isolation from human relationship, as referred to in (iii) above, cannot normally be assumed to constitute acts required for the execution of operations, they are, in principle, regarded as going beyond the “appropriate scope of business.”
At the same time, it is not always easy to discern whether or not the making of excessive demands, as referred to in (iv) above, the provision of too little work or no work at all, as referred to in (v) above, or encroachment upon the person, as referred to in (vi) above, corresponds to appropriate guidance in the course of operations. Thus, since the question of what goes “beyond the appropriate scope of business” is affected by business type and corporate culture and since a concrete determination with respect to this question depends on the circumstances in which the conduct in question was perpetrated and on whether or not the conduct in question is ongoing, it would be desirable to see this scope clarified by promoting shared awareness of this concept among companies and workplaces.
In this connection, a company should look into setting its own power harassment standards based on this report, as authored and issued by the Working Group, and other relevant reference materials. To this end, it would be prudent for such a company to consult with an attorney because it would be necessary to investigate judicial precedents and other pertinent matters.
Preventing and resolving power harassment casesThe report, as authored and issued by the Working Group, also outlined initiatives with respect to preventing and resolving power harassment cases as follows:
To prevent workplace power harassment
・ A message should be issued by a top official of the organization:
→ A top official of the organization shall clearly indicate that workplace power harassment should be eliminated from the workplace.
・ Rules should be formulated:
→ Pertinent provisions should be set forth in the rules of employment. A labor-management agreement should be concluded.
→ Policies and guidelines concerning prevention and resolution should be formulated.
・ Actual conditions should be ascertained.
→ A questionnaire-based survey administered to employees should be conducted.
・ Education should be provided.
→ Training should be implemented.
・ Policies and initiatives should be disseminated.
→ The policies and initiatives of the organization should be revealed and disseminated.
To resolve cases of workplace power harassment
・A framework for consultations and solutions should be established.
→ Consultation offices should be established inside and outside the company. A person responsible for workplace handling shall be appointed.
→ Partnerships with outside experts should be formed.
・ Recurrence should be prevented.
→ Perpetrators should be made to undergo training for the prevention of recurrence.
Our initiativesIn order to deal with sexual harassment and power harassment as referred to above, we designed a sexual and power harassment hotline and legal services to be provided by a sexual and power harassment committee as described below.
These initiatives will facilitate the provision of integrated legal services corresponding to all stages from the detection of harassment to the preparation of a written opinion on the determination of a corporate policy.
Sexual and power harassment hotline
・ We serve as a contact point for fielding reports on sexual and power harassment from employees. ・ The contents of reports that we field from employees are communicated to client companies. Sexual and power harassment committee
Sexual and power harassment committee
・ The parties shall submit a written statement of ordered facts to us;
・ We will conduct an oral interview with the reporting party to glean facts therefrom;
・ We will conduct an oral interview with the reported party to glean facts therefrom;
・ Where we determine that the testimony of a third party is necessary, we will conduct an oral interview with said third party to glean facts therefrom;
・ Where we determine that physical evidence is necessary, we will gather materials constituting physical evidence from the client company or other concerned parties
; ・ We will conduct an internal investigation into the course of the disposition to be undertaken
; ・ We will prepare a written opinion and submit it to the client company;
・ The client company will determine what action it will take upon taking our written opinion into account.
We are proud to offer these new integrated legal services corresponding to all stages beginning with the detection of sexual or power harassment to the conducting of a survey of facts and the preparation of a written opinion concerning disposition.
Handling of overtime hours by companies
Death from overwork in connection with the performance of overtime duties over an extended period of timeRecognition standards for workmen’s compensation relating to cerebrovascular disease and ischemic heart disease have been indicated by the Ministry of Health, Labour and Welfare. The fact that these standards take into account, as an important element, the question as to whether or not overtime work was performed over an extended period of time requires particular attention.
Specifically, where it is not accepted that overtime hours exceed approximately forty-five (45) hours per month over a period extending between one (1) and six (6) months prior to the onset of symptoms, the link between the performance of duties and the onset of symptoms is weak. However, it can be accepted that the link between the performance of duties and the onset of symptoms progressively strengthens as a function of the number of hours of overtime worked in excess of approximately forty-five (45) hours per month over this period.
Moreover, where it is accepted that overtime hours amount to approximately one hundred (100) hours in the month preceding the onset of symptoms or that overtime hours exceed approximately eighty (80) hours per month over a period extending between two (2) and six (6) months prior to the onset of symptoms, the link between the performance of duties and the onset of symptoms can be regarded as strong. Furthermore, determinations of such a link are also used by courts to determine cause and effect and will serve as an important standard in any damage suit premised on the death of an employee from overwork as brought by surviving family members of the deceased.
For this reason, it can be said that a company is required to establish an organizational framework for preventing each of its employees from working approximately one hundred (100) hours in the month preceding the onset of symptoms and from working overtime hours exceeding approximately eighty (80) hours per month over a period extending between two (2) and six (6) months prior to the onset of symptoms.
Unpaid overtime payIn recent years, cases in which an employee demands to be paid unpaid overtime pay have increased in number. In this connection, we believe that there are many cases in which a company, in lieu of the payment of extra wages, responds with a deemed extra-wage system through which a fixed allowance (allowance system) or a fixed amount with extra wages included in the fixed-amount wage of an employee (fixed-amount wage system) is paid.
However, care should be taken as failure to adopt proper measures for a deemed extra-wage system may make the deemed extra-wage system itself susceptible to rejection by a court of law.
According to judicial precedents, the following requirements must be satisfied: (i) the fact that an allowance will be paid in lieu of extra wages should be clarified where an allowance system is in place, (ii) the portion of fixed wages corresponding to extra wages should be clearly identified where a fixed-amount wage system is in place, and (iii) an obligation to pay the amount by which a fixed amount of extra wages falls short of the statutory amount of extra wages owing should be assumed.
Therefore, a company that has adopted a deemed extra-wage system is required to properly verify whether or not these requirements are satisfied. When designing such a system, it would be prudent for a company to consult with an attorney.
Deemed working hour systemIt is difficult for a company to accurately manage the working hours of its employees as they relate to work engaged in outside sales, research and development on new products, and any other duties for which an employee is given the discretion to determine how to proceed and the allocation of working hours. For this reason, the use of a conventional working hour system for employees engaged in such duties could cause unforeseen overtime costs and put pressure on corporate management.
In this connection, the Labor Standards Act provides for a deemed working hour system under which the number of hours normally required for a given set of duties are specified in advance and a given employee is deemed to have worked the number of hours specified accordingly irrespective of the number of working hours actually worked. Thus, a company is advised to proactively consider adopting such a deemed working hour system in part to reduce the amount of unforeseen overtime costs it would otherwise incur.
Deemed working hour systems consist of three types as follows: (i) off-premise deemed working hour system, (ii) discretionary work system for professional work, and (iii) discretionary work system for management and planning.
Off-premise deemed working hour systemCircumstances where an employee engages in off-premise duties and the company finds it difficult to calculate the number of hours of work performed can be handled by deeming that the employee in question worked a certain number of hours. This is known as the off-premise deemed working hour system.
Even if an off-premise deemed working hour system is in effect, however, regulations with respect to breaks, holidays, overtime work, holiday work, late-night work, and other relevant matters as prescribed in the Labor Standards Act will still apply. Therefore, if the number of deemed hours exceeds eight (8) per day, a 36 Agreement (agreement on overtime and holiday work) will need to be concluded and notified for overtime work and extra wages will need to be paid.
Where a company adopts an off-premise deemed working hour system, difficulty calculating working hours is a condition that must be satisfied. Care should be taken as issued directives have indicated that the following types of cases cannot be handled under an off-premise deemed working hour system:
① Where off-premise work is engaged in by a group of multiple employees and where working hours are managed by a member thereof;
②Where, despite the fact that duties are engaged in outside the workplace, work is performed while receiving instructions whenever necessary from the employer via wireless means or by way of the use of a pager or other mobile device;
③ Where an employee, after receiving specific instructions on assigned duties for the current day (such as with respect to the slated destinations and the time at which the person is to return to the office), engages in duties outside the workplace pursuant to said instructions before returning to the workplace.
Since working hours can be calculated in the above scenarios, no off-premise deemed working hour system can be applied. Thus, when adopting an off-premise deemed working hour system, a company must ensure that it is operated in a way that does not encompass any of scenarios (i) through (iii) above.
Discretionary work system for professional workA discretionary work system for professional work is a system for calculating working hours by deeming that employees engaged in research and development work on new products, analysis work on information processing systems, and other duties entailing a high level of expertise worked a number of hours as specified in advance.
As the methods by which such duties are performed are required, to a significant degree, to be left to the discretion of employees engaged in such duties and as it is difficult to issue specific instructions in connection with the means of executing such duties, decisions on the allocation of hours, and other relevant matters, it is possible, with respect to such duties, to deem that subject employees have worked a number of hours as specified in advance.
Duties that are covered by a discretionary work system for professional work consist of the following: (i) duties involved in research and development work on new products or new technologies, (ii) duties involved in analyzing or designing information processing systems, (iii) duties involved in collecting news materials for and editing articles, (iv) duties undertaken by a designer, (v) duties undertaken by a producer or director, (vi) duties undertaken by a copywriter, (vii) duties undertaken by a system consultant, (viii) duties undertaken by an interior coordinator, (ix) duties associated with game software, (x) duties undertaken by a securities analyst, (xi) duties involved in developing financial instruments based on the use of financial engineering expertise and other specialized knowledge, (xii) duties undertaken by a university professor or researcher, (xiii) duties undertaken by a certified public accountant, (xiv) duties undertaken by an attorney, (xv) duties undertaken by an architect, (xiv) duties undertaken by a real estate appraiser, (xvii) duties undertaken by a patent attorney, (xviii) duties undertaken by a licensed tax accountant, and (xix) duties undertaken by a small and medium-sized enterprise management consultant. Thus, a company that employs employees engaged in any of the above duties is advised to look into a discretionary work system for professional work in part to keep unforeseen overtime costs in check.
Even if a discretionary work system for professional work is in effect, however, regulations with respect to breaks, holidays, overtime work, holiday work, late-night work, and other relevant matters as prescribed in the Labor Standards Act will still apply. Therefore, if an employee will be deemed to have worked nine (9) working hours, then said employee will have worked eight (8) hours plus one (1) hour of overtime work, in which case it will be necessary, pursuant to the Labor Standards Act, to pay extra wages corresponding to one (1) hour of work.
Discretionary work system for management and planningDuties for which a discretionary work system for management and planning can be applied consist of duties involved in planning, formulating, investigating, and analyzing matters relating to business operations. As the methods by which such duties are to be appropriately performed are required, to a significant degree, to be left to the discretion of employees engaged in such duties due to the nature of such duties, specific instructions in connection with the means of executing such duties, decisions on the allocation of hours, and other relevant matters are not to be issued for such duties.
This system can only be adopted for employees with the knowledge and experience required to appropriately perform covered duties, such that the guidelines suggest that between approximately three (3) and five (5) years of job experience is a point to consider when assessing eligibility.
Even if a discretionary work system for management and planning is in effect, however, regulations with respect to breaks, holidays, overtime work, holiday work, late-night work, and other relevant matters as prescribed in the Labor Standards Act will still apply. Therefore, if an employee will be deemed to have worked nine (9) working hours, then said employee will have worked eight (8) hours plus one (1) hour of overtime work, in which case it will be necessary, pursuant to the Labor Standards Act, to pay extra wages corresponding to one (1) hour of work.