Korea imposes, in some cases, liability on companies for actions of employees of companies even when the employee conducts an intentional wrongful act outside the workplace, after the work hours and beyond the duties imposed by the employer. The employer is not relieved of civil liability by a mere limiting the scope of duties of employees, warnings to employees or having comprehensive sexual harassment education programs.
A, typical, sexual harassment situation, related to this issue, occurs after a company office party. The manager takes his team out to dinner and drinks. After the dinner and drinks, the inebriated co-worker is asked by the manager to a local motel. The inebriated co-worker alleges, in the morning, that she was incapable of consenting to the sexual advances or that she was pressured either implicitly or explicitly by the manger to have sexual relations with the manager. The courts even when a employer has warned the employee, has conducted sexual harassment education programs and has, specifically, prohibited specific actions of employees has imposed civil liability on companies.
A Seoul Court has, recently, ruled in short that:
“An employer’s liability can be established when an employee [of the employer] has committed an intentional abuse, such as sexual harassment or rape of another employee . . . when an employee is empowered to determine the conditions of employment for other workers (such as recruitment, renewal, promotion, work appraisal, etc.) for the employer, sexually harasses a Plaintiff by using this power close to the work time and within the proximity of the work place.”
Thus, the “intentional abuse” does not need to occur within the workplace or even during working hour.
All workplaces in Korea should have a proactive and nuanced Human Resources Program. The need has increased since the recent change of administrations.
Known for his proactive street-smart advice & non-conflicted advocacy, NY Attorney Sean Hayes works with leading retired Korean judges, prosecutors and experienced Korean attorneys in leading contentious and transactional matters in Asia. First non-Korean lawyer employed by the Korean Court System. SeanHayes@ipglegal.com
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