Women’s Legal Maternity Protections (1/2)

Korean law provides some explicit and concrete protections for female employees related to fertility. The next two posts will discuss some of these laws which companies must be aware of to protect the rights of their employees and avoid penalties.

Employers in South Korea are strictly prohibited from assigning pregnant women, new mothers (within one year of childbirth), or nursing mothers to any hazardous or dangerous work. Violating these rules can lead to serious consequences, including criminal penalties—up to 3 years in prison or a fine of up to 30 million KRW.

When it comes to working hours, pregnant employees are completely exempt from overtime. After childbirth, and for up to one year, they can work limited overtime: up to 2 extra hours a day, 6 hours a week, and no more than 150 hours annually, even with their consent. Employers who violate these limits can face up to 2 years in prison or a fine of up to 20 million KRW.

Expecting mothers also have the right to request a reduction of up to 2 working hours per day if they are in the early stages of pregnancy (less than 12 weeks) or late stages (more than 35 weeks). This reduction comes without any loss of pay. Additionally, the law ensures time off for prenatal medical checkups. Pregnant women can take leave for these appointments once every 4 weeks up until the 28th week, once every 2 weeks from the 29th to the 36th week, and weekly from the 37th week until delivery. Failing to grant reduced working hours can result in an administrative fine of up to 5 million KRW.

There are also provisions for women who aren’t pregnant. Female employees are entitled to one day of menstrual leave per month, though this leave is unpaid. Employers who fail to grant menstrual leave can be fined up to 5 million KRW.

For those undergoing fertility treatments, such as artificial insemination or in vitro fertilization, women are allowed up to three days of leave each year. However, employers are only required to pay for the first day off. Violating this right can also result in a fine of up to 5 million KRW.

These regulations aim to ensure the well-being of women in the workplace, whether they are preparing for, experiencing, or recovering from childbirth or other fertility-related matters.

In the next article we’ll discuss maternity leave and expectations of support from employers to women during and after pregnancy. For any specific questions you might have about the protection of women employees, contact InterLEX!

6 Day Work Week?

Recently an article in the New York Times, “Declaring ‘Crisis’, South Korean Firms Tell Managers to Work 6 Days a Week”, discussed mounting pressure being placed on management at Korean firms to work more time to deal with the challenging economic situation. Employers in Korea may be surprised or confused at how employees could be asked to work extra days when labor law passed as recently as 2018 capped total working hours 52 per week (40 standard hours and 12 overtime hours). How can employers then request an additional working day?

First would be the classification of executives’ employment under the Labor Standards Act (LSA). The maximum number of hours worked hours only applies to employees but does not apply to employers. It could be that executive contracts may be deemed as employer contracts and accordingly, no maximum hour cap would apply. Some of the criteria for determining a worker’s classification include the amount of supervision required to do a job, the way remuneration is determined, predetermined working times, amongst others. However, not all executives are classified as employers, and ‘registered directors’ are not categorized as employees.

Another possible exception is the allowance for ‘management and supervision personnel’. LSA acknowledges the exception of ‘management and supervision personnel’ in only a very limited manner. This concept differs from the concept of an ‘exempt employee’ found in the Fair Labor Standards Act (the “FLSA”) of the USA. The exempt individual must have the authority to determine policy for the management of the employment relations or the authority to control the labor and employment management, in addition to other legal requirements.

Third, it could be that even with six working days, the 52 hour per week limit was not breached. While this argument would likely face scrutiny, working 6 days a week for 8 hours would technically still only amount to 48 hours of work per week. If both the company and employee agreed on the arrangement, it may also be permissible.

Whatever the case, it is important to note that violating established labor laws can have serious consequences. Any employer requests for changing the nature of employees’ contracted scope or nature of work may have legal implications. It would be important to first evaluate potential changes and consult with local labor and employment counsel like InterLEX to ensure a safe and seamless transition of responsibilities.

Understanding Employment Contracts Law in Korea

Employment contracts serve as the cornerstone of the employer-employee relationship, laying out the terms and conditions of employment and delineating the rights and responsibilities of both parties. In South Korea, a robust legal framework governs employment contracts, providing protection provides for both employers and employees. This article aims to provide insights into the key aspects of employment contract law in Korea, including essential elements, common provisions, and legal considerations.

In South Korea, employment contracts are governed by the Labor Standards Act (LSA) and the Civil Code, which establish the basic legal framework for employment relationships. Under the LSA, employers must provide written contracts to employees within a certain period after commencing employment, outlining essential terms such as wages, working hours, and leave entitlements.

One of the crucial elements of an employment contract in Korea is the probationary period, during which the employer and employee have the opportunity to assess each other’s suitability for the position. The duration of the probationary period is typically stipulated in the contract and may vary depending on the nature of the employment.

Employment contracts in Korea often include provisions related to confidentiality, non-compete, and intellectual property rights to protect the interests of the employer. These provisions are enforceable under Korean law, provided they are reasonable in scope and duration and necessary to protect legitimate business interests.

Another essential consideration in Korean employment contracts is termination clauses, which outline the circumstances under which the contract can be terminated and the associated notice periods or severance pay obligations. Korean law provides specific criteria and procedures for termination, including grounds for dismissal and required notice periods.

Understanding the intricacies of employment contracts law in Korea is crucial for both employers and employees to ensure compliance with legal requirements and protect their rights. Seeking the guidance of legal experts specializing in Korean labor law can help navigate the complexities of employment contracts and mitigate risks associated with non-compliance.

InterLEX is a leading law firm specializing in labor and employment disputes in Korea, offering comprehensive legal services to businesses and individuals facing employment-related challenges. With a team of experienced attorneys well-versed in Korean labor law, InterLEX provides strategic counsel and representation in a wide range of employment disputes.

InterLEX expertise extends to handling disputes related to wrongful termination, discrimination, harassment, and wage and hour violations. The firm adopts a client-centric approach, working closely with clients to understand their unique circumstances and develop tailored legal strategies to achieve favorable outcomes.

In conclusion, understanding employment contracts law in Korea is essential for both employers and employees to navigate the complexities of the legal landscape and protect their rights. InterLEX law firms in Korea, businesses and individuals can effectively address employment-related disputes and ensure compliance with Korean labor law.

“Fair Hiring Procedure Act” in Korea

“A” applied for a marketing director’s position advertised by “B” Company.

The advertisement stated that “B” Company’s Daegu was recruiting a PM, with welfare and salary standards identical to those at the headquarter in Seoul. After undergoing several stages of evaluation, including document review and interviews, “A” was hired, and subsequently relocated to Daegu, securing accommodation before commencing work at “B” Company’s Daegu branch.

On the third day of employment, “A” was presented with an employment contract. Assuming that a reputable company like “B” would not include problematic terms, “A” signed the contract without thoroughly reviewing its contents. This decision later led to complications.

The discord arose due to significant disparities between the advertised terms “A” had seen prior to application and those outlined in the employment contract. The contract specified terms substantially different from those “A” had anticipated, particularly concerning working conditions at the Seoul branch.

Feeling deceived, “A” contemplates legal action against “B” Company, alleging employment fraud. Would “B” Company bear legal responsibility in this scenario? Let us examine this through the lens of legal analysis presented in today’s post by InterLEX.

Nature of Employment Contracts

Situations like the aforementioned are not uncommon. Disputes between employees and companies often arise due to differences between job advertisements and employment contracts.

To resolve such disputes, it is imperative to accurately ascertain the nature of the employment contract. Fundamentally, a contract comprises an offer and acceptance. Similarly, an employment contract, being a contract, adheres to these principles.

Should the job advertisement be considered an ‘offer’ for the employment contract, the company could be held legally responsible for deviating from the terms outlined in the advertisement by drafting a contract with different provisions and offering benefits and salaries in a manner contrary to those advertised.

This is because the company failed to uphold the terms of the contract. However, according to court rulings, job advertisements are not offers but mere inducements or preparatory stages.

If “B” Company separately entered into a labor contract with “A”, disclosing different terms from those in the advertisement, and if “A” consented to these terms resulting in the contract’s drafting, the employment contract should be considered based on the contract’s terms rather than those in the job advertisement.

Thus, even if “A” demands that “B” Company adhere to the advertised terms regarding welfare and salary based on the disparities between the job advertisement and the labor contract, B Company bears no legal responsibility to accede to such demands.

It appears unlikely that “A”‘s employment conditions would change in accordance with the job advertisement.

Is “B” Company Exempt from Any Disadvantages?

From the perspective of an employee, such circumstances may seem inherently unfair. Ethically, if there are significant disparities between the job advertisement and the actual employment contract, it may seem reasonable for the company to bear some responsibility.

Regarding this matter, you may refer to the ‘Fair Hiring Procedure Act’ to ascertain the company’s liability.

Article 4 of the ‘Fair Hiring Procedure Act’ (Prohibition of False Recruitment Advertisements) states that an employer shall not issue false recruitment advertisements for the purpose of gathering ideas or promoting the business without justifiable reasons. Furthermore, employers shall not unjustifiably alter the contents of recruitment advertisements to the detriment of job seekers.

Employers shall not unjustifiably alter the employment conditions stated in recruitment advertisements to the detriment of job seekers after hiring them.

Employers shall not coerce job seekers into assigning employment documents or related intellectual property rights to them.

The Fair Hiring Procedure Act prohibits companies from issuing false recruitment advertisements or unjustifiably altering the contents of such advertisements to the detriment of job seekers. Violations may result in administrative fines of up to KRW 5 million.

What Actions Can “A” Take?

Therefore, in the scenario presented, it may be challenging for “A” to demand the same treatment as advertised in the job announcement based on differences between the job advertisement and the employment contract. However, it is possible to initiate legal proceedings against “B” Company to hold them accountable for the discrepancies and impose a administrative fine of up to KRW 5 million.

However, it may be more prudent for both parties to engage in constructive dialogue to reconcile the employment terms rather than resorting to legal action. Therefore, considering the current situation and weighing the pros and cons, it is advisable to seek legal advice to overhaul the company’s recruitment system and conduct legal reviews promptly.

InterLEX, a Korean boutique law firm specializing in HR and corporate law, has earned recognition for its expertise and proficiency. InterLEX’s attorneys are committed to providing beneficial solutions to its clients.

How to set up a liaison office in Korea – What are the necessary documentations?

There is very limited authentic detailed information regarding on which basis, what kind of documents are required to prepare the set up of a liaison office in Korea.

Therefore, in this post, we would like to share an email provided to an (attorney of) client residing outside of Korea, seeking assistance in establishing a liaison office in Korea.

Dear Client,

 Thank you for your email.
Regarding your inquiry of “a citation to the Korean regulations for setting up a liaison office”, please see below the link and the box in detail.

  • It is not stipulated in the Foreign Exchange Transaction Act itself, but in the Foreign Exchange Transactions Regulations, which is a decree of Ministry of Economy and Finance. (대한민국 영문법령 (klri.re.kr))

Foreign Exchange Transactions Regulations
Article 9-32 (Scope of Application and Classification)

  1. The provisions of this section shall apply to cases where a non-resident intends to receive any funds as provided in Article 3 (1) 19 (e) and Article 15 of the Act in order to establish and operate a branch office and business office in the Republic of Korea (hereinafter in this section referred to as “domestic branch”); provided that the provisions of Chapter II shall apply to domestic branch offices and business offices of a foreign bank.
  2. Domestic branches of a non-resident shall be classified as follows:
    • “Branch office” engaging in business activities generating revenues in the Republic of Korea;
    • “Business offices” performing non-business functions, such as liaison, market surveys, research and development activities, without engaging in any business activities generating revenues in the Republic of Korea.

Article 9-33 (Declaration of Establishment and Modification)  

  1. Any non-resident who intends to establish a domestic branch shall declare it to the head of a designated foreign exchange bank.
  2. Notwithstanding the provisions of paragraph (1), if a non-resident intends to establish a domestic branch the purpose of which is to engage in any of the following business affairs or any other business affairs related thereto, he or she shall declare it to the Minister of Economy and Finance:
    • Financial business affairs, other than the banking business, including lending, arrangement and brokerage of overseas financing, card business and installment finance;
    • Business affairs related with the securities and insurance business;
    • Business affairs not permitted under other statutes including the Foreign Investment Promotion Act.

Any person who intends to declare as provided in paragraphs (1) and (2), shall submit to the Minister of Economy and Finance or the head of a designated foreign exchange bank declaration on establishment of a domestic branch of a foreign company using Form 9-8, with each of the following documents attached thereto:
1.   Documents evidencing the name, location and major business affairs of a foreign corporation that is the head office;
2.    A copy of related evidentiary documents if permission, etc. of such establishment is required under other statutes or regulations;
3.   Detailed statement on the details and scope of business affairs to be pursued in the Republic of Korea.

4. Where a person who has declared the establishment of a domestic branch, intends to modify any declared matter, he or she shall submit declaration on modification of a domestic branch of a foreign company in Form 9-9 to the party to whom he or she made the former declaration, with each of the following documents attached thereto:

  1. Documents evidencing such modification;
  2. Business plan (in cases of modification of such branch’s business affairs).

With this being stated, the documents to be prepared are such to support those elaborated above. Which means, the detailed documents required are not written down even in the regulations, so the authorities have certain discretion in the determination process regarding the documents to be submitted.

Regarding the Form 9-8, below information are requested to be filled in.

  1. Official Name of the HQ
  2. Establishment Date of the HQ
  3. Representative of the HQ
  4. Location of the HQ
  5. Business of the HQ
  6. Capital of the HQ
  7. Name of the Liaison Office
  8. Name of the Representative of the Liaison Office and her/his registration number
  9. Location of the Liaison Office
  10. Business of the Liaison Office

Further, the documents that are generally requested to support above, are as follows.
1. Documents evidencing the name, location and major business affairs of a foreign corporation that is the head office;
:Such as foreign company (HQ)’s registration certificate (<-which requires translation notarization and an apostille) / HQ’s articles of incorporation / Document to support the capital of the HQ / Copy of the passport of the HQ representative
2. Detailed statement on the details and scope of business affairs to be pursued in the Republic of Korea
: Such as the board of director’s meeting minutes regarding the establishment of the liaison office in Korea (including the address of the liaison office, the decision to establish the liaison office, and the name and address of the liaison office), (documents to prove that the representative of the liaison office was designated) <- Which requires translation notarization and an apostille), business plan that is the be pursued by the liaison office, copy of the passport or i.d. of the representative of the liaison office, the document of the acceptance of the representative director, lease agreement of the liaison office,


*Since we need to submit above documents to both the official bank as well as to the tax authority, two copies of the apostilled documents are needed, including the POA.

Should you have further questions, do not hesitate to contact us at any time.

 Thank you.

 Best regards,

InterLEX

Understanding Labor & Employment Law and Getting Around Korea’s Regulations

In the vibrant and fast-paced business environment of South Korea, understanding labor and employment law is essential for both employers and employees. With a workforce known for its diligence and dedication, navigating through the intricate web of regulations is crucial to fostering a productive and harmonious work environment. This article aims to shed light on the key aspects of labor and employment law in Korea and provide insights into effectively navigating the regulatory landscape.

Korean labor law is primarily governed by the Labor Standards Act (LSA), which outlines the rights and obligations of both employers and employees. Under the LSA, key provisions include regulations on working hours, wages, leave, termination, and workplace safety. Employers must adhere to these regulations to ensure fair treatment of employees and maintain compliance with the law.

One of the notable features of Korean labor law is its emphasis on collective bargaining and labor unions. The Trade Union and Labor Relations Adjustment Act (TULRAA) governs the formation and operation of labor unions, as well as the negotiation of collective bargaining agreements. Employers are required to engage in collective bargaining in good faith and negotiate with labor unions on matters such as wages, working conditions, and labor disputes.

Navigating through Korea’s labor and employment regulations can be complex, especially for foreign businesses operating in the country. Cultural nuances and language barriers add another challenge to understanding and complying with Korean labor law. However, seeking the guidance of legal experts specializing in labor and employment law can help businesses effectively navigate these challenges and ensure compliance with Korean regulations.

InterLEX is a leading law firm offering labor and employment law services in Korea. With a team of experienced attorneys well-versed in Korean labor regulations, InterLEX provides comprehensive legal support to businesses seeking to navigate the complexities of labor and employment law in Korea.

InterLEX labor and employment law services cover a wide range of areas, including drafting employment contracts, advising on labor disputes, conducting HR audits, and providing strategic counsel on workforce management. The firm’s expertise extends to representing clients in negotiations with labor unions and handling disputes through mediation, arbitration, or litigation.

What sets InterLEX apart is its client-centric approach and commitment to delivering tailored solutions that meet each client’s unique needs. The firm takes the time to understand the specific challenges and goals of its clients and provides strategic legal counsel aimed at achieving optimal outcomes.

In conclusion, understanding labor and employment law is essential for businesses operating in Korea. Navigating through the regulatory landscape requires a thorough understanding of Korean labor regulations and cultural nuances. With the guidance of legal experts specializing in labor and employment law, businesses can effectively navigate these challenges and ensure compliance with Korean labor law. InterLEX offers legal experts specializing in labor and employment law guidance providing comprehensive legal support to businesses seeking to thrive in the Korean market.

Empowering Your Workforce Selecting the Best Law Firm in Korea

In the dynamic landscape of South Korea’s business environment, navigating through the intricacies of labour and employment law can be a daunting task for both employers and employees. With regulations constantly evolving to adapt to changing socio-economic trends, seeking the counsel of a specialized law firm becomes imperative to ensure compliance and mitigate risks. Among the myriad of legal entities in Korea, labour and employment law firms stand out as the go-to experts in safeguarding the rights and interests of employers and employees alike.

One such prominent firm making waves in the Korean legal arena is InterLEX best law firms in Korea, a powerhouse in Labour and Employment Law with a stellar reputation for its comprehensive and client-centric approach. Led by a team of seasoned attorneys with a deep understanding of Korean labour regulations, InterLEX law firms in Korea prides itself on providing tailored solutions to a diverse clientele ranging from multinational corporations to small and medium enterprises.

The cornerstone of InterLEX success lies in its commitment to staying abreast of the latest developments in labour and employment law. With a finger on the pulse of legislative changes and judicial precedents, the firm offers proactive legal counsel aimed at preempting potential disputes and ensuring regulatory compliance. Whether it’s drafting employment contracts, navigating complex labour disputes, or providing strategic counsel on workforce management, InterLEX leverages its expertise to deliver tangible results for its clients.

What sets InterLEX apart is its holistic approach to labour and employment law, which transcends traditional legal services. Recognizing that human resources management is integral to business success, the firm goes beyond mere legal advisory to offer comprehensive HR solutions tailored to the specific needs of each client. From conducting HR audits to implementing compliance training programs, InterLEX acts as a trusted partner in empowering organizations to navigate the intricacies of Korean labour regulations with confidence.

Moreover, InterLEX takes pride in its client-centric ethos, placing utmost emphasis on building long-term relationships based on trust and transparency. The firm adopts a collaborative approach, working closely with clients to understand their unique challenges and goals before crafting customized legal strategies. By fostering open communication and providing timely updates, we are the best law firms in Korea that ensures that clients are empowered to make informed decisions every step of the way.

Furthermore, InterLEX distinguishes itself through its commitment to excellence and innovation in legal practice. The firm harnesses cutting-edge technologies and employs data-driven methodologies to streamline legal processes and enhance efficiency. By embracing innovation, InterLEX law firms services in Korea not only deliver superior legal services but also sets new benchmarks for excellence in the field of labour and employment law.

In conclusion, navigating Korea’s complex labour and employment landscape requires specialized expertise and strategic counsel. With its unwavering commitment to excellence, client-centric approach, and innovative legal practice,InterLEX emerges as a trailblazer in the realm of Labour and Employment Law. For businesses and individuals seeking comprehensive legal solutions tailored to their specific needs, InterLEX stands out as a trusted partner in ensuring compliance, mitigating risks, and achieving success in the Korean market.

In the ever-evolving world of labour and employment law, InterLEX shines as a beacon of excellence, guiding clients through the complexities of Korean regulations with integrity, expertise, and unwavering dedication.

InterLEX Awards and Achievements received:

Asia Law – “Notable Firm” in the Area of Labor and Employment”
https://www.asialaw.com/Firm/interlex/Profile/7002#rankings

Asian Legal Business – “Finalist” in the area of “Labor and Employment Law Firm of the Year” and “Boutique Law Firm of the Year” in ALB Korean Law Awards (Winner will be announced this November 10, 2023) ALB Korea Law Awards 2023 | Asian Legal Business (legalbusinessonline.com)

Legal Times – “Leading Lawyers in the Area of Labor and Employment” [리걸타임즈 특집] Leading Lawyers 2023=인사노무 – 리걸타임즈 (legaltimes.co.kr)