DVD『日本人マネージャー必須DVD - セクハラ基礎知識:アメリカ版』一部抜粋


Online Seminar

When the weather gets warmer, employees tend to wear less clothing and possibly dress inappropriately for a business environment.  Even though many companies have designated business casual as their dress code there is the possibility for employers to face various problems because employees wear clothing considered too casual for the workplace.  There is a difference between business casual and weekend casual.  Because a standard of judgment about appropriate or inappropriate clothing depends on each person’s perspective, it is important for employers to inform employees regarding the company’s standard guideline for workplace dress and appearance.

Periodically, we receive inquiries from managers who are concerned about being accused of sexually harassing an employee if they discuss their inappropriate dress attire.  But, if employers do not warn an inappropriately-dressed employee, it can lead not only to complaints from other employees who feel uncomfortable in the presence of this employee, but also risk the situation expanding into a sexual harassment issue. This is why it is necessary for employers to deal with inappropriately-dressed employees quickly and fairly.

If your company does not have a written dress code policy, managers should still provide warnings to employees based on their own subjective judgment and then apply this judgment consistently with all of their employees.  The existence of a clear dress code policy will/can be a helpful tool for managers to give warnings objectively.  Managers can request that an inappropriately-dressed employee go home to change into more appropriate business-related attire, but warnings to employees should be done fairly. The Company is responsible for making sure employees are being dealt with fairly and equitably in all similar situations when a change of attire is requested.  In addition, employers need to provide an accommodation to employees who wear specific clothing due to their religious beliefs.

It is possible for employers to apply a standard dress and appearance policy in the workplace as long as the policy is equally applied to all groups and there is no discriminatory impact on race, skin color, nationality, age, sex, religion or disability.  It is important for employers to mandate policy of dress and appearance to protect employees’ health and safety.  For example, an employer can create a policy which prohibits employees from wearing jewelry or having a particular hair style if such causes a dangerous situation for employees who operate machinery in factories.  A policy is enforceable if it is created for the protection of the employees’ health and safety even if it is opposed to the employees’ sex, race, religious practice or disability.

In addition, if employees who normally work in an office environment need to go into the company’s factory or a warehouse located next to the office, the dress code policy for the factory or the warehouse has to be applied to all employees. For example, it is typically unsafe to go into a factory or a warehouse wearing open-toe shoes, which are acceptable in the office environment but inappropriate in a factory or a warehouse.  It is necessary for employers to make sure that all employees who have the possibility of entering a factory or a warehouse understand the policies and put them into practice.

The following are guidelines to consider when creating and/or reviewing a dress code policy:

1. To determine a standard of appropriate clothing attire being consistent with an employee’s job duties (For example, a standard of clothing should be different for employees who work mostly in a warehouse than employees who work mostly in an office environment.);

2. To clearly document what type of clothing attire is appropriate or inappropriate in the workplace (Since each person interprets the written word differently, it is helpful if employers place a chart of examples of appropriate and inappropriate clothing);

3. To check if the content of the dress code policy is considered as discriminatory toward a certain type of group, and if so to revise it, when necessary;

4. A dress code policy should be in line with all existing safety rules;

5. Clothing worn by management employees who supervise/manage employees should set a good example (manage by example);

6. To provide an explanation regarding appropriate clothing set by the employer to management employees, when necessary.

We suggest reviewing existing dress code policies when reviewing the company’s employee handbook.   If the company does not currently have a dress code policy, we suggest adding one in the next revision of the company’s employee handbook.  For example, for “business casual”, many employers allow employees to wear jeans.  However, your company needs to inform employees that wearing jeans with holes or torn jeans are not appropriate in the workplace and therefore, are not allowed.  There is a difference in the jeans they may wear for work versus to the club after work or to do yard work on the weekend.  In short, we suggest employers clearly define dress and appearance expectations for the workplace; make sure all employees acknowledge the content of the dress code; make sure management employees who warn inappropriately-dressed employees understand the content of the company’s dress code policy and understand it; and, managers and supervisors are careful to treat employees fairly and consistently.


There is a Japanese famous proverb, “If you are prepared, you don’t have to worry”.  Therefore, it is important to be organized in advance for emergency situations.  If emergency procedures are not prepared, risk increases such as, a communication delay ensuring and verifying the safety of your employees and outside systems (police and rescue team etc.).  Examples of emergency situations can be small-scale fires and earthquakes to a disaster, such as flood caused by typhoon, tornado and heavy rain.  Also, memorable for most people, synchronized terrorist attacks in 2001, Swine Flu in 2009 and the oil spill by British Petroleum (BP) in 2010, etc. are examples of large-scale disasters.  Is your company prepared for these types of emergency situations? 

Policies and Procedures in Writing

Regardless of the industry and the size of each employer, it is the responsibility of all employers to assume unexpected emergency situations in advance and to be prepared because employers need to provide safe workplaces for their employees.  Therefore, in addition to regular business operation safety programs, employers should prepare, update and keep an emergency business closing policy, evacuation procedures, written documents about data protection and operational procedures for clients and all business related operations.

Important points to be considered when preparing written policies and procedures

Although it is important for employers to have policies and procedures for safety standards and emergency situations, it is meaningless if the contents are not fully understandable by all employees.  It is critical to have policies and procedures that reflect the employer’s industry and company size.  Otherwise, applying those policies and procedures during an emergency may not be applicable.   For the reasons mentioned above, it is essential for employers to ensure written policies and procedures are carefully and clearly written.

For preparation of ensuring and verifying the safety of your employees

Although policies and procedures at the time of emergency situations vary based on size and nature of the emergency, the first responsibility of employers is to ensure the safety of employees.  It is necessary for all employers to collect and manage contact information of all employees (home address, home telephone number, cellular phone number, e-mail address and emergency contact information). 

However, employers need to be very careful to select employees in charge of managing this information.  For example, if employers distribute this information as “a contact information list for emergency situations” to all employees, this might lead to privacy issues where the employer may become liable for this breach of privacy.  Human Resources personnel should be the only individuals who retain, request updates and manage the distribution of this information as a rule.  Employers should release only necessary information to employees’ bosses and designated management in emergency situations on an “as needed” basis.


Keeping written policies and procedures is fundamental for employers to take the first step to developing emergencydisaster plans.  Employers should maintain clearly written policies and procedures for all employees and conduct regular meetings and/or training for employees.  Regardless of the size of your company, periodic fire drills, ensuring measures for emergency situations by management (HR department) and preparation and stocking of necessities should always be in the forefront of the employers’ mind.  Companies with clearly documented and tested emergency disaster plans should be able to minimize damage and risk when emergency situations occur. June 2011.

April in Japan is closely associated with employees joining new companies.  April is also a time when new expatriate employees arrive atU.S.companies from parent companies inJapan.  Often expatriate management employees’ first responsibility is to evaluate their new subordinates under very different practices thanJapan.  After a few months upon arriving fromJapan, we often receive inquiries, such as “We would like to terminate employees with poor performance”.  When we ask reasons why they would like to terminate an employee, most say, “The employee performs badly.”, “The employee makes the same mistake repeatedly.” or “The employee does not meet the company’s standard.”  We often find insufficient evidence or lack of objective proof showing the employee’s inability to perform the essential job duties.  Likewise we also often uncover that, management has not provided necessary communication to make sure the employee is fully informed of management’s expectations.

Potential Issues behind Employee’s Poor Performance

Generally, it is necessary to consider two main issues when we review employee performance.

First, we should make sure the employee’s job duties are in writing.  If there is no written format clearly describing the job duties (known as “Job Descriptions” in theU.S.), it is very difficult for superiors (management) to identify what performance needs to be improved.   A Job Description is a document clearly written describing essential job functions of each position, job skills, knowledge, physical demands, work environment, education and work experience, and it is also a “tool” to assist communication between management and employees.  However, it is common to find a difference of understanding about job duties between an employee and his/her manager.  Many Japanese companies in theU.S.do not have Job Descriptions or they use old Job Descriptions, which are not consistent with current job duties, etc.  Does your company maintain current clearly written Job Descriptions?

Second, even if a Company has Job Descriptions on file, some explanation and communication between an employee and his/her manager may not be sufficient.  Management should not expect, “He/She should be able to understand without detailed explanation.”  It is the manager’s responsibility to provide a clear explanation of what should be expected and to provide on-going continuous coaching and guidance so the employee has every opportunity to succeed.  It is especially important that if performance needs improvement, management needs to clearly indicate what specifically needs to be improved and how it needs to be improved.  The discussion needs to be as detailed and concrete as possible. 

Also, management should put all information in writing whenever they speak to their subordinates about improving their performance.  This is an opportunity for management to improve communication with their employees.  Do employees and management at your company communicate often and effectively?

When we think back at the time of interviewing and hiring, another possibility is that the position does not suit the employee, and/or the company hired a person who does not possess the background and skills consistent with the Job Description.  When the company does not hire the right person for the job, the company must first consider maximizing the abilities of its current employees effectively in their current job or a different job before considering termination.  Termination should always be a last option.    

Management should ask themselves these points prior to considering discipline

Before providing oral and/or a written warning to an employee, management should ask themselves the following questions.

  • Were employees clearly informed about their job duties and did they understand their manager’s expectations?
  • If the company keeps Job Descriptions, does the company keep them up to date, distribute and review them with employees?
  • Was an explanation and guidance of an improvement plan clearly communicated with the employee?  How do I know the employee clearly understood the improvement plan?


To consider terminating an employee because of his/her poor performance is an employer’s choice.  However, we recommend making sure first if there are any potential issues contributing toward the employees’ poor performance.  For example, “What are the reasons the employee continues to repeat the same mistake?” and/or “Are there any other causes not in the employee’s control such as, internal inefficient procedures and systems?”  To minimize these issues, employers can take actions immediately by preparing Job Descriptions for each position reflecting job duties accurately or updating existing Job Descriptions. 

There are other various ways for employers to prepare and take measures.  We are planning to review the subject in the near future. April/May 2011.

Abercrombie & Fitch (A&F) is one of the leading clothing companies in the world. They manufacture and sell apparel that target the 18-24 year old demographic who represent the “All-American Look.” Many people argue about the definition of what is “All-American,” since the U.S. continues to evolve and include many different cultures and races. A&F has been successful for over 100 years, but has been under scrutiny over its hiring practices.

In late 2004, A&F Fitch settled a major race and sex discrimination lawsuit (Gonzales v. Abercrombie & Fitch) agreeing to alter its well-known collegiate, all-American – and largely white – image by adding more blacks, Hispanics and Asians to its marketing materials. That settlement required the company to pay $40 million to several thousand minority and female plaintiffs who charged the company with discrimination.

Recently, A&F has come under fire for applying its corporate-wide “Look Policy” to prevent Muslim women from wearing head scarves while working for the company as “models.” Most recently, a federal jury in Tulsa, OK awarded the Equal Employment Opportunity Commission (EEOC) $20,000 in compensatory damages on behalf of a Muslim woman the commission alleged was denied a job by Abercrombie & Fitch Stores Inc. because she wears a headscarf (EEOC v. Abercrombie & Fitch Stores, Inc. dba Abercrombie Kids, July 13, 2011).

The EEOC sued Abercrombie & Fitch Stores, Inc. on a civil rights violation theory claiming that it discriminated against a female applicant when it refused to hire her to work in an Abercrombie & Fitch Kids store in 2008 because she insisted on wearing a headscarf. The EEOC had originally sought compensatory damages and injunctive relief again Abercrombie & Fitch. However, the jury rejected EEOC’s claims for punitive damages and injunctive relief, according to the judgment entered by Judge Gregory K. Frizzell of the U.S. District Court for the Northern District of Oklahoma.

This decision came on the heels of a lawsuit filed in intervention by a Hollister employee—one of Abercrombie’s stores—in which the employee alleged that Hollister and Abercrombie that she was fired for refusing to remove her hijab, or religious head scarf, and further, that the defendants failed to accommodate her religious beliefs (EEOC v. Abercrombie & Fitch Stores, Inc. dba Hollister Co., filed June 27, 2011).

In the most recent case, an Abercrombie district manager directed an assistant manager not to hire a teenage applicant who had worn a head scarf to an interview. Notwithstanding the assistant manager’s advice that the scarf was worn as an expression of the applicant’s religion, the district manager indicated that the head scarf did not comport with the company’s “Look Policy,” and that therefore  she should not be hired.

Noting that the teenager in the most recent case had worn the head scarf since she was 13 and she wore it currently, the court concluded that the record was devoid of evidence that her decision to wear the head scarf was based on anything other than religious belief. Moreover, contrary to the employer’s challenge, the court concluded there was no genuine issue of material fact as to whether the applicant’s religious belief was sincerely held. The inquiry, stated the court, is whether the “belief is held as a matter of conscience or instead, animated by motives of deception and fraud.” There was no evidence that the applicant was motivated by deception or fraud. Accordingly, the employer failed to rebut the applicant’s showing that she wore the scarf because of a bona fide religious belief.

Although the court emphasized a different finding could arise in other cases, in the most recent case Abercrombie could not demonstrate that it would have been unduly burdened had it accommodated the teenager’s religious beliefs.

In the other case, an employee filed a complaint in intervention, joining the EEOC in a lawsuit against Abercrombie. The complaint alleges that when the employee interviewed for her position at a Hollister store, she was asked whether she could wear a hijab while at work that comported with Abercrombie & Fitch’s “look policy,” to which she responded that she could. While the employee worked mainly in the stockroom, she occasionally visited the sales floor to replenish clothing. After working at the store for approximately four months, a visiting district manager saw the employee on the sales floor with her hijab. According to her complaint, the employee was instructed to speak with the director of human resources, who asked if the employee could remove the head scarf. After replying in the negative and indicating that she wore the hijab in accordance with her religious beliefs, she was suspended.

The employee alleges that she received a call asking her to return to the store for a meeting with the district manager and a human resources representative. Again she was asked whether she would remove her hijab in order to comply with the “look policy,” and again, she refused, citing her Muslim faith. The employee alleges that she was advised that Abercrombie & Finch could “not accommodate her religious observances,” and she was immediately terminated

In the California case, the employee alleged four cases of action under Title VII and the California Fair Housing and Employment Act (FEHA), including religious discrimination and failure to accommodate religious beliefs. Specifically, the defendants suspended and fired the employee because she wore her hijab and would not remove it, and refused to initiate any steps to accommodate her, the complaint alleges. Furthermore, had the defendants accommodated her, it would not have caused them undue hardship, the employee claims in her complaint. In each instance, she asserts that the defendants’ actions were intentional, willful, malicious, and/or done with reckless disregard for her rights

With its look policy at issue, the question remains whether Abercrombie will take steps necessary to ensure that Muslim women can work for the company, while still abiding by their religious beliefs. 07-27-2011. HRM Partners.

Oilfield services companies are booming amid a rush to tap North America’s newfound troves of crude oil and natural gas. The discoveries are pushing U.S. energy employment to its highest levels in two decades. Baker Hughes Inc. on Monday reported its income in North America doubled last quarter from a year-ago to $440 million. Also, Halliburton Co. said its second quarter North American profit more than doubled from a year earlier and Schlumberger Ltd. on Friday reported that its North American profit jumped six-fold to $673 million.

With these growing profits and a need to hire more workers, some energy companies are worrying that there may be a shortage of oil field workers. In all, there was a gain of 17,200 new oil field jobs recently. In May, the Bureau of Labor Statistics reported there were 413,500 jobs in the oil and gas extraction and support businesses in positions ranging from roustabout to tax accountant. The oil and gas extraction business sector was one of the areas that added jobs in June.

It’s kind of ironic that with the U.S. unemployment rate hovering above 9.0%, the energy sector employment is coming alive after two solid decades of reducing employment. The growth started in 2004 when U.S. energy producers began extracting natural gas from shale-rock formations. Now with the combination of horizontal drilling and hydraulic fracturing, a drilling frenzy had fed a flurry of hiring. Although somewhat curtailed by the recession of 2009, the energy sector has fully recovered and is now adding an average of 5,920 jobs a month this year through May.  07-26-2011. The Wall Street Journal.

Baristas are putting up pressure on Starbucks Corporation to come to terms with 200 unionized workers in Chile who have been on strike for more than two weeks. Employees belonging to the IWW Starbucks Workers Union kicked off a “global week of action” on Monday in solidarity with their Chilean colleagues by picketing in front of a Starbucks in New York City. The IWW baristas, who are not affiliated with the Chilean workers’ union, have announced that union workers will be handing out flyers outside Starbucks stores in Phoenix, Philadelphia, Los Angeles, Pittsburgh, London and Melbourne, Australia. The IWW also plans an event in Starbucks’ hometown of Seattle this week.

Starbucks entered Chile in 2003 and is the only country where the company has a sizeable union presence, with less than a third of the company’s 670 baristas organized in Chile. The strike in Chile is over wage increases along and other stipends that Starbucks doesn’t consider standard business practices such bonuses for weddings and birth of children.  07-26-2011. Summarized from The Wall Street Journal.

Volkswagen AG opened a new automobile production facility in Chattanooga, TN in late May with 1,700 workers already hired. It is already becoming a focal point in union efforts to gain a foothold among foreign auto makers’ U.S. manufacturing operations. An unusual linking of German labor rules and U.S. law is raising union hopes in a region that has long resisted their overtures.

The United Auto Workers (UAW) union and labor officials at Volkswagen in Wolfsburg, Germany last week held talks about VW labor efforts to establish a German-style system of worker representation at the new Chattanooga plant. If this happens, it could open a door to an as-yet undefined relationship between the group and a union whose membership has plummeted dramatically over the past three decades. U.S. law normally allows works councils only if workers are represented by unions.

With 390,000 active members today and down from 1.5 million in 1979, the UAW has failed in many attempts to penetrate the U.S. plants of foreign auto makers such as Toyota and Nissan. The UAW has run into strong opposition at foreign-owned plants in Tennessee and other Southern states, where cultural sentiment against unions runs deep and right-to-work laws allow workers to opt out of unions where they exist. Nissan workers in Tennessee rejected UAW representation by a 2-1 ratio in 2001 and 1989. Volkswagen management has said that it won’t try to block unionization effort at the Chattanooga facility, if workers there support an organizing drive by the UAW. It is obligated under the terms of a charter it signed with the global VW works council to have local works councils in all of its plants around the world. Chattanooga would be the only wholly owned VW plant without a works council.

A works council has more power than a union by virtue of its position on every supervisory board. Under German corporate law, worker representation gets about half the seats on a supervisory board. This means that management needs their help to get through any major initiatives. Because of this, relations are generally better in Germany between labor and management than in the U.S.

With several auto plants now in the South and all non-union, the UAW may have an uphill battle to unionize the Chattanooga plant. However, they are focused on attempting to organize at least one foreign-owned auto plant by the end of 2011. In addition, they are aggressively attempting to build ties with other foreign unions in Germany and Korea with an eye for possible attempts at the Hyundai Motor plant in Alabama, BMW in South Carolina and Daimler AG in Alabama. 07-26-2011. HRM Partners; with excerpts from The Wall Street Journal.

California’s golden state image continues to be tarnished these days with its overall economy remaining soft into the summer of 2011. California recently released its unemployment rate for June rising slightly to 11.8% over the 11.7% rate for May. The June rate for the U.S. was 9.2%. The slight rise in California’s unemployment comes even as employers added workers. Overall the state had a net gain of 28,800 jobs in June recovering from a net loss of 21,100 jobs in May.

 A sizable chunk of the 28,000 jobs California added in June were in the Bay Area, which continues to be a leader of the state’s recovery with the continued rise in internet and social media companies. Whatever job growth there is in California appears to be concentrated in affluent areas such as Silicon Valley and in high-paying fields such as professional services. Blue-collar trades such as construction and trucking continue to reduce workers.

 Seven categories (manufacturing; information; financial activities; professional and business services; educational and health services; leisure and hospitality; and other services) added jobs over the month, gaining 40,900 jobs. Professional and business services posted the largest increase over the month, adding 16,400 jobs. Two categories (construction and trade, transportation and utilities) reported job declines over the month, down 12,100 jobs. Trade, transportation and utilities posted the largest decrease over the month, down 11,000 jobs. Two categories, mining and logging and government, recorded no change over the month.

 It’s not very difficult to see why California’s unemployment is almost 12%. A full 28% of the state’s workers are in Los Angeles County with a labor force of 4.8 million and a 12.4% unemployment rate. An additional eight other counties have labor force numbers over 500,000 workers and make up more than 64% of the total California workforce. Except for Orange County, they all have double-digit unemployment rates. They include: Orange – 1.6 million workers, 9.2% unemployment; San Diego – 1.6 million workers, 10.4% unemployment; Riverside – 900,000 workers, 14.4% unemployment; Santa Clara – 875,000 workers, 10.3% unemployment; San Bernardino – 845,000 workers, 14.0% unemployment; Alameda – 745,000 workers, 10.9% unemployment; Sacramento – 670,000 workers, 12.6% unemployment and Contra Costa – 516,000 workers, 11.0% unemployment.

 Compared to the other U.S. states, California has the third highest unemployment rate in the U.S. only behind Puerto Rico with 14.9% and Nevada with 12.4%. Other U.S. states with unemployment rates just below 10% and above include Rhode Island, Florida, Michigan, South Carolina, District of Columbia, Mississippi, Alabama, Georgia and North Carolina. The 10 U.S. states with the lowest unemployment rates of 6.0% or under include: North Dakota (3.2%); Nebraska (4.1%); South Dakota (4.8%); New Hampshire (4.9%); Oklahoma (5.3%); Vermont (5.5%); Wyoming (5.9%); and Virginia, Iowa and Hawaii all at 6.0%. 07-25-2011. HRM Partners, Inc.

The Internal Revenue Service (IRS) announced on July 19 that it is discontinuing a method of substantiating business travel per diems known as the high-low method.

 Under the high-low substantiation method, if an employer pays a per diem allowance in lieu of reimbursing actual lodging, meal and incidental expenses an employee incurs when traveling away from home, the amount of the expenses that is deemed substantiated (under IRC § 274(d)) for each calendar day is equal to the lesser of the per diem allowance for that day or the amount computed at the rate provided in an annual revenue procedure for the locality of travel for that day or partial day. This method was intended to be a simplified substantiation method to be used in place of the regular per diem substantiation method using the federal per diem rate.

 The IRS has annually issued an updated per diem rate for travel to any specified “high-cost locality” or other locality within the continental United States. Under the high-low substantiation method, the high or low rate, as appropriate, applied as if it were the federal per diem rate for the locality of travel.

 The IRS says it plans to publish a revenue procedure later this year that will provide general rules and procedures for substantiating travel expenses (omitting the high-low substantiation method). It will then no longer publish annual updates, but it will publish a new revenue procedure only when it modifies the rules and procedures. However, the IRS will continue publishing the special transportation industry per diem rate in an annual notice. 07-19-2011. Bureau of National Affairs; Journal of Accountancy.

Employers and employment agencies would be barred from refusing to consider out-of-work job applicants based on their status as unemployed under a bill introduced July 12 in the House. The Fair Employment Opportunity Act was introduced by Rep. Rosa DeLauro (D-Conn.) and Rep. Hank Johnson (D–Ga.) with 30 co-sponsors. The bill was referred to the House Education and the Workforce Committee.

“In a tough job market, where workers are competing against tens and sometimes hundreds of others for every available job opening, it is unjust for employers to discriminate against those who are unemployed,” DeLauro said. “We have seen ample evidence that unemployed individuals are increasingly falling prey to discriminatory practices reducing their opportunities to be considered for a job.”

The bill joins similar legislation introduced in March, also offered by Johnson, that would amend Title VII of the 1964 Civil Rights Act to prohibit employers from discriminating against job applicants based on their unemployment status.

In conjunction with the bill’s introduction, the National Employment Law Project (NELP), released a report that found that four of the top job search websites included more than 150 job advertisements that specified applicants must be currently employed. NELP’s snapshot of jobs postings identified more than 150 ads that included exclusions based on current employment status, including 125 ads that identified specific companies by name. The overwhelming majority of the offending ads required that applicants “must be currently employed.” CareerBuilder.com and Indeed.com accounted for more than 75 percent of the exclusionary ads NELP identified. Staffing firms were prominently represented among those companies identified with the practice of excluding unemployed job seekers, accounting for about half of all the postings. 07-18-2011. Bureau of National Affairs.