Calculation of Overtime Hours for Maximum 52-Hour Workweek Law

A labor dispute leading to an indictment occurred between an employer and an employee concerning the calculation of Korean overtime work. In Korea, an employee is prohibited from working more than 52 hours each week (LSA, Article 53(1)). Thus, only 12 overtime hours are permitted to be worked each week over the normal working week of 40 hours. The dispute concerned the calculation of what constitutes these 12 overtime hours.

Korean Ministry of Employment & Labor

The employer was indicted for a criminal charge under Article 53(1) of the Korean Labor Standards Act (“LSA”). The employee, with support from the Ministry of Employment & Labor, contended that overtime is calculated on a daily basis, while the employer contended that overtime should be calculated on a weekly basis.

Therefore, if a person works 45 hours a week, the overtime is five hours according to the employer, even if the employee worked 15 hours on any given day. The total number of hours in the week is 52 or less and, thus, the employer is not in violation of the law.

While, the employee noted that overtime should be calculated based on the day, thus, if one works three 15-hour shifts in a week the amount of overtime is 21 hours in a week which is more than the 12 overtime hours allowed by law (seven hours of overtime each day for three days per week). The interpretation of the Korean Ministry of Employment & Labor and Korean lower courts supported the argument of the employee.

The Supreme Court sided with the employer in Supreme Court Decision 2020 Do 15393 Decided on December 7, 2023. Based on the decision of the Supreme Court, the Korean National Assembly proposed a daily working hour limit, not merely a limit based on hours per week.

The Supreme Court of Korea opined that the employer must prevail, since:

  1. For criminal punishment to be imposed, Korean courts should strictly interpret the wording of the statute;
  2. Article 53(1) of the LSA limits working hours to 12 overtime hours per week; and
  3. The calculation of Overtime Hours can be different for the calculation under Article 53(1) and Article 56 (overtime pay calculation).

The Supreme Court decision is the first ruling by the Supreme Court determining the standard for determining the calculation criteria for determining if an employer is in violation of the 52-hour maximum work hour requirements under Article 53(1) of the LSA.

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