“HOMEWORK” (FOR LEGAL MATTERS)
First of all, it is important to establish that there is no question that “homework” is “work”.
However, in a legal context, just what is “work”?
Curiously, the Labor Standards Act lacks a definite answer to this question.
While the word “labor” and its many synonyms are often used (as one would expect), there is no clear definition as to exactly what is, and what is not, “work”.
Nevertheless, the Japanese justice system (backed by a Supreme Court ruling on the matter) subscribes to the “objective theory” (客観説) of “work” as being anything that a person does while under the direction and/or authority of another entity (i.e. an employee under the direction of an employer).
This was set in stone in 2000 after Mitsubishi Heavy Industries was sued by a number of its employees for not paying for work that was ordered by the company.
Workers were not under company authority during [the time spent moving from the front gate the changing room] and [time spent moving from the changing room to the front gate]; workers were free to use their break time as they chose [during lunch] and [immediately after lunch]; and [time spent taking a shower] involved actions that were not required of workers and did not interfere unduly with their commute home.”
– HIFUMI OKUNUKI (“When Is An Hour Not An Hour?”)
Simply put: if someone else is telling you to do something for them, that’s work – and work needs to be paid for.
If someone is under the authority of their employer, that’s work – and work needs to be paid for.
If Joytalk tells its employees to do “homework”, that’s work – and work needs to be paid for.
All of which brings us to the crux of this article.
HOMEWORK (FOR JOYTALK)
“This is a very important email,” the e-mail states, “as it contains information pertinent to the homework assignment we are asking you to have completed for training.”
At this point, it’s important to take note of exactly what the Joytalk ALT Manager chose to highlight:
• this is a very important email
• homework assignment
• to have completed
The language used here is very specifically that of an employer directing an employee to do work.
However, there is no mention of how much time at home such work will take, how much time Joytalk wants ALTs to allot to this instruction, or how much overtime pay Joytalk will be compensating each ALT with.
This is not a simple “assignment”, either; it is an “action research homework” assignment that has several steps and rules that an ALT must adhere to:
Preform [sic] some action research concerning the situation in which you teach/work. Action research is small scale research that teachers preform [sic] in their own classrooms. Basically speaking, to perform action research you:
1) Observe a problem
2) Devise a possible solution
3) Try out your solution
4) Observe and record the results
5) Report on those results and their implications for the benefit of your colleagues
So your homework assignment will be to do just that and bring in your report so that you can share it with everyone. Rather than listen to us for 3 days make speculations about what works/doesn’t work in YOUR classrooms, lets have you, the people, share with us what does/doesn’t work.
Again, the language being used here is very specific: employees are being ordered to do “research” at school, during normal classes, and then to perform unpaid overtime work at home by reporting the results of their experiments.
By the way, do you know what the definition of unpaid overtime work is?
ILLEGAL HOMEWORK (FOR JOYTALK)
The e-mail continues:
2) Devise a possible solution
3) Try out your solution
4) Observe and record the results (have a plan for what you are going to observe)
5) Report on the results and implications (write at least a 1 page single spaced paper detailing all of the above, email it to us before training, and bring your own copy to training so that you can share).
Here are more steps and conditions that the Joytalk ALT Manager is directing employees to follow, both at school and at home, followed by what additional up work they’ll need to do in order to submit the “homework” (aka “illegal unpaid overtime work”) to the company.
Everything else aside, writing a report that is “at least one page” in length is not something that people can do in a minute or two; it is something that is going to take people a lot of free time, at home, in private, that they’re not getting paid for.
Yes, just in case you thought the e-mail was being too subtle, there is a deadline.
ILLEGAL UNPAID OVERTIME (JOYTALK)
A few days after the original e-mail was sent out, Joytalk doubled-down by sending out a reminder about the “homework” to the “honorable members of the Joytalk family”:
If at all possible, please make sure that you are able to respond to the previous message (Not this message, please.) about your plans for the action research if you have not already. We are very thankful for your proposals up until this point and look forward to hearing about everything that you have worked on. We are hoping to discuss this first thing when we meet for training on day 1 in each area.
Simply put: “We are very thankful that we’ve tricked you into doing unpaid overtime for us.”
Companies and individuals can call it whatever they like, but work is work, and work needs to be paid for.
What Joytalk is doing here is a manipulative trick that many unscrupulous companies adopt when they want something for nothing (i.e. when they want employees to do something for them in exchange for paying them nothing):
They dress it up as something else.
By using the word “homework”, Joytalk have disguised the fact that what they’re asking people to do is unpaid overtime.
THE IMPORTANCE OF KNOWING WHEN WORK IS WORK
In a perfect world, the correct reply to an e-mail of the kind shared above would be to ask the company just how many hours of overtime that they are going to pay you (in accordance with Japanese law) in order for you to complete the requested work.
If the answer is “zero”, you might then respectfully inform whoever sent the e-mail that, unless they’re paying you for your time, they can go [and re-evaluate] themselves.
However, this is not an ideal world, and – unless you don’t mind burning bridges – discretion is often the better part of valor.
You would be well within your right to refuse to do such assignments. That being said, the General Union cannot, in good conscience, advise people to be defiant as individuals.