Global employers need to comply with recruiting and hiring laws in the countries in which they operate. In particular, discrimination laws may affect the wording employers can use in job advertisements, the questions they can ask on job applications and compliance with country-specific employment quotas.
The US and Japan share little in common when it comes to employment law, and some of the most striking differences present themselves during the recruiting and hiring stage.
Here are five key recruiting and hiring differences between the US and Japan:
1. Pregnant Applicants
In Japan, there is no law prohibiting employers from rejecting female applicants on the grounds that they are pregnant. This is in stark contrast to the US, where private employers with 15 or more employees are prohibited from refusing to hire an individual because she is pregnant or has a pregnancy-related condition under the Pregnancy Discrimination Act (PDA). In addition, several states consider discrimination based on pregnancy, childbirth and related medical conditions as a form of sex discrimination while other states explicitly prohibit pregnancy discrimination.
Under the PDA, an employer or supervisor in the US may lawfully consider any limitations imposed by the pregnancy on the applicant’s ability to perform the essential job functions. However, as long as the applicant can perform those essential job functions of the job, an employer may not refuse to hire her.
2. Workplace Quotas
Japan requires employers with 50 or more employees to ensure that 2% of their workforce is made up of people with disabilities. Employers with 100 or more employees that do not meet the quota are penalized. On the flip side, however, employers with 100 or more employees that exceed the requirement are entitled to a monthly monetary benefit.
The US has no similar requirement for private employers. Instead, Section 503 of the Rehabilitation Act requires federal contractors and subcontractors to create an affirmative action plan for recruiting and retaining individuals with a disability. Contractors must apply a 7% hiring goal for qualified individuals with disabilities. The purpose of the goal is to inform decision-making and hold decision-makers accountable.
3. Medical Examinations
In Japan, companies are under a statutory obligation to ensure that their employees are able to work under safe conditions that do not endanger their health. As a result, employers must ensure that employees undergo a medical examination by a physician on recruitment in order to determine their appropriate work assignment and to enable the management of any health conditions.
In the US, it is unlawful to require candidates to take a medical exam prior to making the job offer. However, post-offer, but prior to the start date, an employer may condition the job offer on the candidate responding to certain medical questions and/or successfully passing a medical exam. Under the Americans with Disabilities Act, medical exams must be related to the job and consistent with business necessity. And if an employer follows through with these exams, they must require them across the board for the position to avoid a potential discrimination claim.
4. Job Applications
While Japanese employers generally are prohibited from discriminating an applicant on the basis of age, employers there may ask for an applicant’s age on a job application. But in the US, questions about age should not be part of any job application as this might violate federal and/or state anti-discrimination laws. US employers should also avoid questions that may reveal the applicant’s age, such as when did you graduate from high school?
5. Employment Contract
Fixed-term employment contracts and part-time employment are now common. However, the typical Japanese employment relationship has traditionally been based on the principle of lifetime employment, under which a full-time employee works for an employer until the employee reaches retirement age and is employed under an open-ended full-time contract. In order for an employer to dismiss such an employee, there must be “objectively reasonable” grounds for a dismissal to be upheld.
This differs significantly from the US, where employment is generally considered to be at-will, meaning that an employer can terminate an employee at any time for any reason (with certain exceptions) or for no reason without incurring legal liability.