SNA (Tokyo) — A 68-year-old woman died of a heart attack at her workplace, the home of a bed-ridden elderly resident, in 2015. She worked as a housekeeper and nurse. Immediately before her death, she had worked in the home on a nearly 24-hour basis for a full week straight.

The woman’s bereaved husband applied for occupational injury and illness insurance, confident that the death was caused by the exhausting labor.

Article 79 and Article 80 of the Labor Standards Act require employers compensate families who survive the death of a worker due to a cause related to the work, but the government refused to recognize her death as an official case of karoshi (death from overwork) because Article 116.2 excludes domestic workers from all protections, even if they have contracts with the household and work under their direct orders.

In 1988, the Ministry of Labor stipulated in a directive that those who are hired by and take orders from a business that provides housekeeping services to personal households are not to be considered “domestic servants.” Thus, not all domestic workers are domestic servants as referenced in and excluded by Article 116.2. Those who sign a contract with and sell their labor to a business are protected by the Labor Standards Act and possess occupational injury and illness insurance.

This woman received detailed written work orders from, and was paid directly by, the company with which she was registered. She was, for all intents and purposes, employed.

Her widower thus sued the national government in an effort to overturn the decision not to pay out the insurance, asserting that she was indeed an employee (rodosha), not a “domestic servant.”

Last Thursday, Tokyo District Court ruled against the plaintiff, stating that “‘domestic service’ in this case is based on a contract with the ‘user’ = personal household = the son of the family member who required nursing care. Thus, it cannot be recognized as company work.”

This verdict is incomprehensible to me because she had her contract with the company, not the son, and the status of the “user” is no more relevant here than, say, is the relationship between a store clerk and a customer. It was the company which paid her and gave her work orders.

Moreover, the fact that a large part of her work was nursing care for an elderly person in a home rather than domestic service should have been enough to convince the judge that this was clearly employment. The verdict seems to acknowledge this point, but then goes on to reject the claim that overwork caused her death: “the nursing care portion of her work–for which she received work orders from the company and is protected by insurance–accounted for just 31 of the 168 hours she was on duty per week, so that portion of the work cannot be deemed excessive labor.”

In other words, maybe her extreme work hours caused her death, but the hours she worked in a job covered by the law were not enough to kill her.

The plaintiff reacted to the verdict: “I wanted the court to judge properly, for the sake of the many who work as housekeepers. They are doing work indispensable to society. Yet I think more will be treated like my wife was. I want the government to deliberate on measures for those who will live in the future.”

Attorney Shoichi Ibuski, who represented the husband, responded, “this is a ridiculous and excessively formalistic verdict which ignores the reality of the situation. I feel that the court, despite recognizing that she was on duty 168 hours a week, wanted to avoid judging the causal relationship between her work and death, so the judge put forth the notion that it’s okay to consider only the nursing care portion of her work hours.”

The verdict seems cruel, but the reality is that domestic workers work in a state of lawlessness, enjoying none of the rights and protections of the Labor Standards Act.

The deceased woman was herself elderly, yet had to work and live 24/7 in someone else’s home to take care of a family member requiring the highest level of care, in addition to handling all the housework. This ruling mechanically bifurcates nursing care and domestic work, deeming the former but not the latter as protected labor. It thus ignores workplace realities.

The vast majority of the more than 11,000 domestic workers in Japan are women. Since not all contracts made by personal households are reported, the true number might be far higher. These thousands of workers work are entirely unprotected.

The plaintiff is likely to appeal the ruling, and it’s crucial that the Tokyo High Court acknowledge the harsh realities faced by domestic workers–their long, hard days of toil.

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