Justin: Hi Isabelle, recently Samsung’s labor union has been in the news a lot. I was curious why are unions formed in Korea?

Isabelle: Unions are typically formed for a few key reasons. First, there’s a lot of concern about job security. Also, there could be a general dissatisfaction with working conditions, such as inadequate salaries. There also might be distrust of leadership, especially with allegations of workplace harassment or unfair treatment.

Justin : I see. Then from the company’s perspective, it’s critical to address these types of problems to reduce the motivation for employees to unionize.

Isabelle: Yes, at the end of the day, dynamics between companies and unions are like two competing leaderships trying to earn employees’ trust.

Justin: That’s an interesting point. So, if employees believe they can rely on the company’s existing channels to resolve their concerns, they might feel less inclined to turn to a union.

Isabelle: Exactly. These channels might include regular communication through the Labor Management Council, which, according to Korean labor law, should meet at least every three months. Additionally, a solid complaint management system for whistleblowers is essential.

Justin : What else? Isabel: Another recommended feedback mechanism would be, implementing a fair performance-based compensation system.

Justin : I see. I guess when employees see that their hard work is rewarded fairly, their desire for collective action is diminished.

Isabelle : That’s right. Unions form to gain collective bargaining power to obtain better working conditions. If employers are mindful of these factors, unions are less likely to form.

Under the Korean Labor Standards Act (LSA), certain exemptions apply to managerial or supervisory employees, freeing them from the 52-hour workweek limit, overtime pay, and holiday allowances. However, the law lacks a precise definition of what qualifies someone for this status. A recent Supreme Court ruling (Supreme Court Decision 9019Da223389, decided on April 12, 2024) sheds light on this issue, stressing that the determination must go beyond titles and allowances, focusing instead on the actual duties performed and the degree of supervision involved.
The case centered around a company policy that denied overtime allowances to employees receiving a responsibility allowance, which was intended for managerial positions. Although the lower court had supported the company’s stance, the Supreme Court reversed the ruling. The Court found that simply receiving a responsibility allowance or holding a managerial title does not automatically exempt employees from overtime pay. Instead, the key consideration is whether the employees were performing substantive managerial duties and if they operated under minimal supervision.

This ruling emphasizes the need for companies to look beyond job titles or internal policies when classifying employees under the LSA. Moving forward, businesses must carefully assess the actual responsibilities and supervision levels of their employees to ensure they are properly categorized and compliant with the law. If you have any questions about whether an employee might be considered a manager, please contact the experts at InterLEX for assistance!

Be careful! Some Labor Attorney’s are Not Lawyers & Some Labor Law firms are not law firms in Korea.

Justin: I was shocked to hear that so called ‘labor attorneys’ are not lawyers in Korea.

No wonder why Korean Labor Attorney’s costs vary so much in Korea. Some quote costs quite low and claim to offer the same service

Isabel: Actually, you have raised a very important issue that most non-Koreans would not know.

To clarify, 변호사 like myself, often called as attorney or legal counsel, are actual lawyers in Korea.

However, 노무사, often calling themselves as labor attorneys are not really lawyers.

Justin: Really? That is really odd because in my understanding the term ‘attorney’ can only be used after earning a JD and passing the bar exam. Do these labor attorneys have those qualifications?

Isabel : No. They have passed a separate exam which with no requirement of any level of education to pass this 노무사 or labor attorney exam. Since they are not attorneys, they also cannot represent their clients in court, nor defend criminal cases related to labor law violations.

Justin:This confusion could definitely mislead international clients….

Isabel:A relationship with legal counsel is one based on trust and firm understanding of each other. If an HR issue was unresolved with the capabilities of a Nohmusa and escalated to the courts, a client would have to later hire a real lawyer, Byeonhosa to resolve the matter. Fortunately, at InterLEX, we are all fully licensed lawyers with abilities to aid our clients in all legal matters and represent them in court or any labor commission necessary.

Justin: Then how about the term ‘labor law firm’. Are they really a ‘law firm with lawyers’?

Isabel: No. This term is also used in a very confused manner.

The so called labor attorneys call their firms labor law firm, but they are technically no law firms, 법무법인 under the Korean law.

Many international clients think there are numerous labor law firms in Korea with real lawyers, however, it is important to differentiate those two.

Justin: Then how many true law firm are there in Korea, with the expertise in labor and employment?

Isabel: Excluding those giant law firm with numerous services, InterLEX is the only labor and employment law firm with international capability.

So called ‘labor law firms’ are not law firms.

In the first part of this series, we delved into the protections for female employees’ rights during and before pregnancy. Now, let’s shift our focus to one of the most critical topics: the types of leave available for pregnancy and childbirth.

Under Korean law, specifically Article 74 of the Labor Standards Act (LSA), pregnant female employees are entitled to 90 days of maternity leave (or 120 days if expecting multiples). Importantly, at least 45 days (60 in the case of multiple births) must be taken after childbirth, ensuring time for recovery. However, women have the flexibility to use up to 45 days of this leave prior to the birth. The cost of maternity leave is shared by both the employer and the employment insurance fund.

Korean law also extends maternity leave to employees who suffer from stillbirth or miscarriage, though amount of leave varies depending on what stage the pregnancy ended. After 28 weeks of pregnancy, full maternity leave is allowed for miscarriages.

It’s important to note that under Korean law, female employees must take at least 45 days of leave after giving birth. Employers who violate this regulation can face hefty fines of up to 20 million KRW or even a prison sentence of up to 2 years, according to Article 110 of the LSA. Once an employee is ready to return, they are legally entitled to their previous position or a comparable one with equal pay.

But what about employees who seem to be absent from work for longer than the 90-day maternity leave? This is likely due to a provision known as “Temporary Retirement for Childcare” (often referred to as Child Care Leave), protected under Article 19 of the Equal Employment Opportunity Act (EEO). This law allows both mothers and fathers of children that under 8 or in the second grade or lower of elementary school to take up to 12 months off work. During this time, employers are prohibited from taking negative actions against them and must ensure they return to the same or an equivalent position with the same pay.

The intent behind these laws is clear: to protect the health and well-being of female employees and aid their recovery post-childbirth.

However, it’s worth noting that adoptive mothers are not eligible for maternity leave. That said, both adoptive parents are eligible for Child Care Leave, allowing them to take time off and bond with their adopted child.

Maternity protections are quite serious in Korean law, particularly now as childbirth rates are at a critically low level. For any questions you might have about your company’s situation or applicability of maternity-related regulations, contact the experts at InterLEX.

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!

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.