HR Legal Clinic

Recruitment Regulations
Yoshikazu Sugino
, Partner, Nagashima Ohno & Tsunematsu


Question: What are some of the key recruitment regulations in Japan that employers need to understand?

Answer:

An employer may recruit employees through private or public channels. An employer may use public employment security offices (kokyo shokugyo anteisho), private placement agencies, schools, advertisements, mass media platforms and other avenues as a means of recruiting.

Public employment security offices, job placement service providers, any persons who conduct the recruiting of employees, rodosha no boshu (Employers), and any consignees of Employers in respect of the recruiting of employees (“Recruitment Consignees”) also collectively referred to as employment security offices, etc. – must consider the following general rules applicable to recruitment: 

*Recruiting of employees means the solicitation for employment conducted, directly or through a third party, by a person who intends to hire an employee towards a person who wishes to be employed.

1. Prohibition of discrimination
Under the Employment Security Act (Act No. 141 of 1947 or the “ESA”), discrimination in shokugyo shokai (job placement) or job training by reason of race, nationality, creed, gender, social status, family origin, previous occupation and membership in a labor union, etc. is prohibited (Article 3 of the ESA).
 

*Shokugyo shokai (job placement) means intermediary activities for the establishment of an employment relationship between a person who is seeking a job and a person who is seeking an employee, upon request by each such person (e.g., headhunting and outplacement services).

2. Presentation of working conditions
The ESA requires employment security offices, etc. to expressly present the details of the job to be engaged in and the employment conditions to a person to be employed. The information should include pertinent details such as salary and working hours and any change thereof (Article 5-3, paragraphs 1 and 3 of the ESA).
 

3. Handling of personal information
Public employment security offices, etc. must collect personal information from candidates to the extent necessary for the achievement of their business purposes. They must keep and use such information to the extent necessary for the purpose of such collection, and take measures necessary to appropriately manage such information (Article 5-4 of the ESA).

4. Application for employment
Public employment security offices and job placement service providers must, in principle, accept every application for employment from the employers and the candidates (Articles 5-5 and 5-6 of the ESA).
 

Public employment security offices and job placement service providers must make efforts to introduce job seekers to employment that is compatible with their capabilities and to introduce job offerers to job seekers who are compatible with the employment conditions they offer (Article 5-7 of the ESA).

5. Non-intervention in labor disputes
Public employment security offices, etc. may not introduce a candidate to a business office where strikes or lockouts take place (Articles 20, 34 and 42-2 of the ESA).
 

6. Job placement service providers
Any person who intends to charge a fee for providing job placement services must obtain a license from the Minister of Health, Labor and Welfare (the “Minister”) (Article 30, paragraph 1 of the ESA). Fee-charging job placement services are prohibited with respect to certain jobs, such as harbor transportation and construction businesses (Article 32-11 of the ESA), and are subject to various regulations under the ESA.

Any person who intends to conduct free job placement services must obtain a license from the Minister; provided, however, that such services conducted by certain schools, certain corporations for their members (such as chambers of commerce and industry and agricultural cooperative associations) and local government may conduct such business after registration with the Minister (Articles 33 to 33-4 of the ESA). 

7. Prohibition of worker supply business
Under the ESA, rodosha kyokyu jigyo(worker supply business), which is defined as the business of causing workers to work under the supervision and instruction of a third party pursuant to a worker supply contract, is prohibited (Article 44 of the ESA). However, a labor union, etc. may carry out a free-of-charge workers supply business where it has obtained a license from the Minister (Article 45 of the ESA).

8. Recruiting of employees
If a person who intends to hire an employee consigns the recruiting of employees to any person other than its employees and pays for such recruiting services, such person (who intends to hire an employee consigns the recruiting of employees to any person other than its employees and pays for such recruiting service) must obtain a license from the Minister (Article 36, paragraph 1 of the ESA). The amount of consideration paid for recruiting services must be approved by the Minister in advance (Article 36, paragraph 2 of the ESA). If a person who intends to hire an employee consigns the recruiting of employees to any person other than its employees and does not pay for such recruiting services, such person (who intends to hire an employee consigns the recruiting of employees to any person other than its employees and does not pay for such recruiting services) must submit a notification to the Minister (Article 36, paragraph 3 of the ESA).

Employers and the Recruitment Consignees may not receive any consideration from candidates who apply for employment (Article 39 of the ESA). Employers may not pay to Recruitment Consignees any consideration other than consideration approved by the Minister. Also, Employers cannot pay their employees any consideration for recruiting services other than salary, etc. (Article 40 of the ESA).

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Yoshikazu Sugino is a partner of Nagashima Ohno & Tsunematsu. He graduated from the Law Faculty of Tokyo University, and obtained an LL.M. at Columbia Law School in 1994. He worked at Winthrop, Stimson, Putnam & Roberts (currently, Pillsbury Winthrop Shaw Pittman LLP) in New York from 1994 to 1995 and Allen & Overy (London) from 1995 to 1996. He is also a member of the Daiichi Tokyo Bar Association.


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