Published : Tuesday, Aug. 9, 2011
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Scant legal justification for unpaid overtime

By YUICHI KAWAMOTO and CHARLES ALVAREZ

John has a question about unpaid overtime:

I’ve been working in Japan for the past few years and lately, because of the slow pace of business, our company has let go of some of our staff. As a result, we have to split the workload of the recent layoffs. Our boss keeps telling us to punch in our timecards for regular hours and not to do any overtime, but I cannot do all of my work within a regular eight-hour day, and I find myself routinely doing overtime. I am not getting paid for any of my extra work, and I was wondering what sort of steps I could take to get compensation.

From what you’ve told us it sounds like you may have a case against your employer. Forcing employees to work overtime without compensation is illegal and can carry serious penalties for your employer.

In principle, a work week is supposed to total 40 hours, divided into eight hours per day. Any work beyond this limit is only possible with prior agreement between the employer and employees, and is subject to overtime payment. The amount of overtime wages depends on when exactly the employee worked. If you work more than eight hours a day or 40 hours a week, the overtime wage for these hours is 25 percent above the normal hourly rate. If you work more than six days a week or 20 days during a four-week period, the premium for the work on the extra days is 35 percent. If overtime hours are done during late-night hours, which are classified as between 10 p.m and 5 a.m., the overtime premium is 50 percent (unless it is obvious that the late hours were taken into consideration when the salary was set). There are exceptions to the above in certain industries and positions, but this rule is generally applied regardless of any previous agreement between the parties.

Certain contracts include a clause stating that the salary includes any possible overtime hours or a specified “overtime allowance.” While the former is illegal, the latter is not illegal per se. However, employees are entitled to claim any difference between the overtime allowance and what the overtime wage for the actual hours would have been using the premiums mentioned above. Essentially, with or without an “overtime allowance clause,” the employee is entitled
to the same overtime wages.

If overtime work is done with the understanding of the employer but without an explicit request, the employee can still file a request for unpaid overtime wages. If the employee is ordered specifically not to do any overtime work, the employee cannot usually request any overtime wages. However, if the employee is told not to do any overtime by the employer, but given the circumstances needs to work overtime in order to accomplish the work the employer has assigned, the employee can request overtime wages. It sounds like in your case, you will have to recall the tasks you were assigned and show that overtime was necessary despite your employer’s requests.

When there is unpaid overtime, an employee can report it to the relevant labor standards bureau, which will conduct an investigation and either suggest or request payment if a violation is found. It is important to make the case as clear as possible, and be prepared to present any evidence when reporting unpaid wages to the labor standards bureau in order to avoid being refused an investigation. If all goes well, the bureau can make recommendations and offer guidance to the employer.

You can also take the claim to court with or without the prior involvement of a labor standards office. You can file a suit on your own — pro se — or with a lawyer. The amount in dispute will determine which court handles your case. You can do it through litigation (saiban) or mediation (shinpan). Evidence proving actual hours worked is essential to any claim for unpaid overtime. If there are no time cards available, then other evidence such as work reports and emails that are time-stamped can be used. You may also want to keep your own log of working hours as evidence.

The statute of limitations for unpaid overtime wages is two years. However, you should make your claim as soon as you have all the necessary materials.

Yuichi Kawamoto is a lawyer at the Section of Legal Assistance for Foreigners at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area.
Website: http://www.t-pblo.jp/slaf
Phone: (03) 5979-2880
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