Issues | LEARNING CURVE

Two English teachers stand up for their rights and win — a valuable lesson for anyone working in Japan

by Kris Kosaka

Contributing Writer

The closure of 51 Coco Juku eikaiwa (English conversation) schools in Japan last week, with more to come in June, illustrates just how unstable the English teaching market can be. Companies that used to provide fairly well-paying jobs are now, in many cases, restructuring them into something that resembles a McJob — a brief stop in between a person’s schooling and career.

Given this change and the often temporary status of an eikaiwa instructor, when a problem with working conditions arises, many teachers will simply grin and bear it until they head back to their home countries or just jump to another company.

However, that wasn’t the case for Mulele Jarvis, 48, and Cindy Powers, 69. After receiving what they believed to be questionable contracts, the pair took their employers to court and walked away in triumph. It was a grueling 2½-year struggle but the lesson for all of us is clear: Know your rights as a worker.

“I’ve been living and working in Japan since I was 20, so I really had no experience with contracts and signed pretty much whatever I was given,” Jarvis says. “This recent process has really educated me, and I encourage everyone to look carefully at the contents of their own contracts.”

Before we get into the pair’s fight, it’s good to know some background. In 2013, the government amended the Labor Contracts Act (LCA) to include a provision that would allow a worker on serial fixed-term contracts for more than five years to request job permanency. That five-year period came due last year, but some companies responded by creating loopholes to get out of offering permanent positions, such as asking workers in their fourth year to take a term break and, subsequently, start their five-year period all over again.

Another way some companies tried to get around the five-year period was to categorize their workers as “independent contractors,” which would have the effect of putting them outside the scope of the LCA amendment.

Read contracts carefully

In 2016, Jarvis was informed that the eikaiwa company he worked for would change owners. As a result, he and his fellow employees were given new contracts to sign in August of that year. However, it wasn’t long before he noticed something wasn’t right.

“I had worked in the school for seven years and (the contract) was markedly different,” Jarvis says. “In addition to calling us independent contractors instead of workers, the new contract took away our paid holidays and overtime. The company name was misspelled or written differently in several places, plus the duration was actually shorter than my (existing contract at the time), due to expire in January.”

Despite the inconsistencies, Jarvis says he wasn’t initially inclined to make a big deal out of the situation. However, Powers, who is also Jarvis’ mother and worked for the same eikaiwa company part time, absolutely refused to sign her contract.

“There’s a rumor that goes around the foreign community that we don’t have any rights, that in any disagreement, the system will always side with the Japanese person against the foreigner,” she says. “That rumor is perpetuated by landlords and employers who need to discourage any protest. It’s not true.”

Powers and Jarvis brought their contracts to lawyer Taiga Sawafuji, who happened to be one of Jarvis’ students at the school he worked for. Sawafuji had just passed his law exams at the time and agreed the contracts raised a few red flags.

“An independent contractor is hired for a specific job and that contract is legally connected to the specified labor,” Sawafuji says. “It’s like hiring a construction firm to wash your windows. That contract’s main point would be in the completed job, not the time variants nor the conditions. If you wash the windows quickly, you finish in two hours. Wash slowly, you’ll finish in six hours. Either way, the contract pays based on the completed job.

“An English teacher is clearly a worker in legal terms, as they can not in normal situations be hired for a specific job without regard to hours or conditions. Teaching English is not that type of work.”

Although Jarvis and Powers both refused to sign their contracts, Jarvis says he alone was subsequently hassled with repeated meetings and threatened with dismissal if he did not sign.

“It was really my mother’s conviction that kept me fighting,” Jarvis says, “and it was funny to us that the male employers assumed it was my initiative, not hers.”

In for the long haul

Despite some small concessions, Powers and Jarvis still hadn’t signed their contracts by the end of 2016, and both their names were removed from the teaching schedule as of Jan. 1, 2017. On Jan. 4, Sawafuji submitted a provisional deposition at the Tokyo District Court: Powers was the first plaintiff of the year and Jarvis was second. It was Sawafuji’s first case as a lawyer.

“A provisional deposition is a powerful legal procedure, but it is quite complicated to file,” Sawafuji explains. “Many lawyers will not bother as it is very time-consuming. Yet if the court rules that there is just cause, the employer is required to pay living expenses for the employees while the entire legal process unfolds.”

The Japanese legal system actually has some solid labor laws that protect workers, the catch is that the worker needs to know about them and have the means to financially wait out the legal process.

Things were tough for Jarvis, who went four months with no salary before the judge awarded him full living expenses of ¥250,000 a month in May 2017. Powers received half, as she concurrently held other work. Again, Powers and Jarvis knew their rights, thanks to Sawafuji.

Granted the right of execution, two court officers accompanied Jarvis and Sawafuji to his eikaiwa company to collect the back pay straight from the safes.

“The executioner was an amazingly calm man who simply and quietly demanded that they hand over their cash as we proceeded from school to school,” Powers says, with Jarvis adding that it was a “beautiful moment.”

There’s a light

The initial legal victory was just the beginning, however, as two more years of court dates and trials followed. The judge had recommended an early settlement of one year’s salary in severance pay, but the school refused, so Powers and Jarvis continued to fight.

“We could all see from the beginning that it was a winnable case,” Sawafuji says. “But it is very difficult to actually obtain a settlement, because the school’s working condition is not an ordinary situation for teachers. It is hourly and based on the students’ selections, so there were many difficult points to prove legally for our settlement. Basically, Cindy and Mulele wanted to be allowed to return to teaching, but what would happen next? The school could easily make it difficult to obtain any lessons. It was a hard choice for us, too, to keep fighting.”

The pair were aided by their perseverance but, admittedly, Sawafuji’s willingness to suspend his fees until the settlement was resolved was of tremendous help. With only two weeks remaining before a judge may have forced its hand, the school agreed to a settlement last month rather than allowing the pair to return to their jobs. Both Jarvis and Powers were awarded several years salary.

“It’s still a shock that, after 2½ years, it’s done,” Jarvis says. “They’ve conceded the war. All I can do now is warn others.”

Sawafuji hopes that other people working in Japan can be inspired by their story.

“If you are faced with an unfair contract, it is very important to seek consultation before you sign,” he says, adding that prefectural offices and those in the larger cities offer free legal consultation. On top of that, places such as Houterasu (Japan Legal Support Center) offer consultation on a needs-based payment scale and, of course, Sawafuji says you can try to join a union to learn more about your rights as a worker.

“If the first legal advice you get is not helpful, try somewhere else,” he says. “Know your rights and don’t give up.”

Jarvis echoes Sawafuji’s advice. “Be aware of your rights,” he says. “Find colleagues or counsel to help and stick together. Just because you are a foreigner or a part-time worker, you still have rights.”

“Japan is a civilized country,” Powers adds, “and if you’re being treated unfairly and you stand up, there will be Japanese allies to help you.”

For more information on Houterasu, visit www.houterasu.or.jp.

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