Current Institutional Affiliation
Professor, Faculty of Law, University of Tokyo

Award Information

Abe Fellowship 2012
Institutional Affiliation (at time of award):
Professor, Faculty of Law, University of Tokyo
A Comparative Legal Study of Non-Standard Employment Policies in the US, Germany and Japan: The Regulatory Approach, Market Function Approach and Options for Japan

This project has three aims: 1) to analyze different policies taken towards non-standard employment in the US, the EU (especially Germany), and Japan; 2) to clarify the reality of the US market function model; and 3) to propose a new policy that the Japanese government should adopt to address unstable non-standard employment and the widening unfair gap between standard and non-standard employees. Non-standard employment (part-time, fixed-term and temporary work employment) is a universal problem in most advanced countries because of its instability and inferior working conditions. The EU and Germany adopt the regulatory approach but the US maintains the non-regulatory market function approach. Japan has shifted from the market function approach to the regulatory approach recently. Therefore, the project will firstly clarify the different approaches in these three countries from four perspectives (employment security, restrictive regulation, equal treatment regulation, market adjustment). Secondly, the project will examine and clarify the reality of the market function approach in the US. The market function approach has been sustained by the employment at-will doctrine. However, the doctrine is significantly eroded by three exceptions created by case law. Thus, to what extent at-will employment has been eroded and whether such erosion affects non-standard employment is the first point worthy of examination. Second, whereas EU directives prohibit discrimination between standard and non-standard employees, in the US, disparity between them has been deemed as a corollary of contract freedom and does not constitute unlawful discrimination. Whether such a situation is maintained and will continue is to be studied. Third, the merits of the market function approach need to be clarified. In European countries' experience, the overly regulatory approach stifled market functioning and increased unemployment. Less regulated non-standard employment can be an incentive for an employer to hire the unemployed. The market function approach in the US is expected to provide abundant examples in this regard. The third and ultimate goal of the project is to propose new policies on non-standard employment for Japan based on this comparative study. As far as standard employees are concerned, Japan has developed a unique "flexicurity" model reconciling employment security and the flexible adjustment of working conditions. However, until 2012, Japan did not develop full-scale policies of non-standard employment, whose ratio had reached one third of the total Japanese workforce. The 2012 legislation on fixed-term employment contracts is just a first step towards a non-standard employment policy that seeks a better balance between flexibility and security. To envisage future labor policies, the following should be kept in mind: 1) as non-standard employment exhibits diversity, any measure to be taken should also be diversified; 2) since overly interventional regulation will have an adverse effect on the labor market, the proper and fairly regulated utilization, rather than prohibition, of non-standard employment is needed; and 3) a suitable balance between regulatory measures and market functioning should be sought. The proposals for the Japanese case based on this comparative study will also be a valuable contribution to policymaking in other countries.