Korea’s Occupational Safety and Health Act Amendments for 2018 (OSHA Korea Updates)

Because of the perceived need, in Korea, to protect workers’ emotional and physical health in the service sector, the Occupational Safety & Health Act of Korea (“OSHA Korea”) was amended.  The major OSHA Korea amendments impose a: Duty on Employers to Protect the Emotional & Physical Health of Employees  The OSHA Korea Amendment mandates employers, in the service sector, to protect the emotional and physical health of employees from abusive acts of customers.  We do not, yet, have substantial details on the actions needed to be taken by employers to meet these legal obligations.  Enforcement actions against employees and an enforcement decree shall shed light on the specifics and we shall update the reader when more is known.We advise that employers in the service sector review policies in place in order for employers to not run afoul of the new OSHA law.  It seems like a proactive approach that includes

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Dismissal of Employees in Korea: Supreme Court of Korea Precedent

The Korean Supreme Court ruled, in March of 2018, that a company may terminate employees for one incident of employee gambling.  The case stems from the termination of drivers that were caught on one occasion gambling prior to driving buses. The lower courts ruled, in short, that gambling was not a serious enough offense to justify termination since: The act of gambling, only, occurred on one occasion and thus trust between the employee and employer has not broken down; The employees performed their job functions adequately; and The non-termination of employment of the employees would not significantly interfere with the ability of the employer to successful continue its business- if the employees do not engage in these acts in the future. The Supreme Court reversed the decision of the lower court and noted that: Gambling could effect the rest period of the drivers and the job of the drivers requires

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Definition of “Ordinary Wage” in Korea: Korean Employment & Labor Law Basics

The courts of the Republic of Korea, for years, has struggled to find a consistent interpretation of an “Ordinary Wage.”  The definition of Ordinary Wage, under Korean Law, was clarified by the Korean Supreme Court in two decisions handed down on December 18, 2013.  The calculation of Ordinary Wages is important, since it is utilized to calculate statutory entitlements, and thus has an impact on the aggregate amount of contributions necessary to be paid to employees. For example, according to Article 56 of the Korean Labor Standards Act, an employer must pay 50% of the Ordinary Wage plus the Ordinary Wage for overtime, night and weekend work performed by the employee. Because of the potential for a large unknown future liability, this issue became the most significant issue, in the last few years, among domestic and foreign employers in labor and employment law in Korea. The basic Korean test is

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Civil Liability of Companies for Actions of Employees Off the Company Property and After Work Hours

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

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Infertility/Subfertility & Childcare Leave Law in Korea

The recent Moon Administration is making drastic changes to Korea’s Employment & Labor Law.  A prior article on promises made by the Moon Administration was posted earlier in the year.  Two interesting changes relate to “Subfertility Leave” and “Childcare Leave.”  We shall be updating the reader over the next couple weeks on numerous other issues that are important for employers and employees to understand about Korean Employment & Labor Law.  Check back often and subscribe via the link to Right.   Fertility Leave Law in Korea Employees facing fertility issues may receive three days off per year with one of these days off being a paid day off – exceptions, however, exist.  This amendment shall, likely, come into effect from May of 2018. Childcare Leave Law in Korea The present childcare leave law, in short, provides 40% of the regular salary in leave up to a maximum of KRW 1 million/month. 

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Non-Compete Restrictive Covenant in Employment Contracts in Korea

Korean courts have invalidated numerous, non-compete agreements, reduced the amount of time of the non-compete period and/or have reduced liquidated damage amounts for violation of non-compete agreements.  Courts typically balance the freedom to work (an ability to work outside the specific field) with the significance of the interest in the employer to enforce the covenant not to compete.  The primary factors courts utilize in determining whether to enforce a non-compete agreement are: if compensation was paid in exchange for the covenant not to compete; if the interest being sought protection over includes valuable trade secrets and other valuable intellectual property; if the position of the employee was such that the employee would be able damage the future of the employer; if the employee was terminated for justifiable reasons; if the industry practice is to enforce covenants not to compete; and if the employee is harmed by the covenant not to

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Legality of an Employer Lockout in Korea: Korean Labor & Employment Law Basics

Korea, in the eyes of many domestic and foreign companies, has been lax in the enforcement of the rights of employers to run a business.  One noted cases that lead to a decision by the Supreme Court of Korea comes to mind.  Because of a labor strike at a major automobile parts manufacturer and the physical blocking of the use of replacement workers and employer machinery by the employees, the employer implemented a partial unpaid lockout of certain employees (employees were employed by a unit of the employer), thus disallowing certain workers to enter the workplace in order to prevent further disruption of the manufacturing process.  The employees physically blocked production and thus did not allow certain orders to be fulfilled by the employer, thus affecting the employer’s business. The case is a great case to demonstrate Korea’s Lockout Law. Following the lockout, the locked-out employees, on several occasions, expressed

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IPG’s Korean Employment & Labour Law Chapter in Global Legal Insights 2018

IPG is proud to announce the contribution of the Korean chapter to GLI’s 2018 Edition of Employment & Labour Law.  The publication contains chapters from 29 different countries.  The publication may be found at: Employment & Labor Law, Sixth Edition. Key Issues addressed are, among others,: -General Labour Market Conditions in Korea -Employment Policies under the Moon Administration -Litigation Trends in Korea -Definition of “Ordinary Wage” in Korea -Korean Supreme Court’s Regular Interval Bonus Case -Director as an Employee for Korean Employment Security Purposes -Korean Employee Lockouts -Layoffs and Dismissals Based on Fault of the Employees in Korea -Korean Restrictive Covenants Law -Trade Secrets Protection in Korea -Severance Payments in Korea -Childcare Leave in Korea -Maternity Leave in Korea -Paternity Leave in Korea -Annual Leave in Korea Please see the other articles below and via the Employment Law Tag. (c) Sean Hayes – SJ IPG. All Rights reserved.  Do not

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Part-time Worker Annual Paid Leave Obligations under the Korean Labor Standards Act

Employers, in Korea, are in most cases required to grant annual paid leave to full-time and even part-time workers working in Korea-based companies.  Exceptions to this Korean annual paid leave law exist for Korean workers that work, on average, less than 15 hours per week for these Korean-based companies. Article 18 of the Korean Labor Standards Act notes that: “(1) The terms and conditions of employment of part-time workers shall be determined on the basis of relative ration computed in comparison to those work hours of full-time workers engaged in the same kind of work at the pertinent workplace.” However, annual paid vacation leave and other articles/obligations under the Korean Labor Standards Act do not apply to “workers whose contractual work hours per week on an average of four weeks (in cases where their working periods are less then four weeks, then, based on such period of work) are less

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EEOC Complaints in Korea at Yongsan Army Garrison, Camp Humpreys and Area I: EEO Korea Complaints

This law firm’s U.S. lawyers handle EEOC Korean complaints from our office in Korea; Merit System Protection Board (MSPB) appeals from Korea; grievances under the Negotiated Grievance Procedure from Korea; complaints to the Equal Employment Opportunity Commission (EEOC); lawsuits in U.S. federal court for federal employees working at Yongsan, Camp Humphreys, Area I and throughout the Korean peninsula.  We, also, on occasion handle matters stateside and throughout other parts of Asia.  These matters are all personally handled by Sean Hayes and his team. Some of the employment law work, in these matters, are essential to be performed in Korea when actions of the U.S. government occur in Korea, thus, IPG has developed a team to handle these matters along with a NY-based associated employment law firm.  The majority of our clients working for the U.S. Military are either facing discrimination, a hostile work environment or have been terminated from employment. The

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Equal Employment Opportunity Commission Attorney in Korea for U.S. Military Employees

Yes. Some U.S. lawyers in Korea are experienced handling appeals to the Merit System Protection Board (MSPB), grievance under the Negotiated Grievance Procedure and complaints to the Equal Employment Opportunity Commission (EEOC). Regrettably, only a small group of lawyers in Korea are experienced in U.S. government employment matters for government workers working for the Department of Defense in Korea. Most U.S. lawyers would, only, know where Yongsan is and wouldn’t know Camp Red Cloud from Camp Humphreys. A great deal of the employment law work, in these matters, are necessary to be performed in Korea when actions of the U.S. government occur in Korea, thus, IPG has developed a team to handle these matters along with our NY-based associated firm. Typically, it is advisable to hire a U.S. lawyer, in Korea, to handle these matters if an administrative action is necessary. These actions shall occur, in most cases, in Korea

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Merit System Protection Board Appeal Lawyers in Korea

IPG is proud to announce that we retain lawyers that have experience handling appeals to the Merit System Protection Board (MSPB), grievance under the Negotiated Grievance Procedure and complaints to the Equal Employment Opportunity Commission from our Korean office. A great deal of the work, in these matters, are necessary to be performed in Korea when actions of the U.S. government occur in Korea, thus, we have developed a team to handle these matters along with our NY-based associated firm. The majority of our clients are either facing discrimination, a hostile work environment or have been terminated from employment. For more information please contact Sean Hayes. (c) Sean Hayes – SJ IPG. All Rights reserved.  Do not duplicate any content on this blog without the express written permission of the author. info@ipglegal.com.

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Doing Business in Korea: The Korea labor market under the Moon administration

The election of progressive President Jae-in Moon, after the impeachment and imprisonment of the conservative former President, led to, among other progressive proposals, pledges from the President Moon Administration of sweeping changes to Korea’s Labor & Employment Law.  The following appears in a publication supported by the Korean Government.  The complete publication may be found at: Discovering Business in Korea.  The following changes are the major changes proposed by the Moon Administration. The changes may have a significant affect on companies doing business in Korea and may lead to an increase in taxes as a percentage of GDP. 810,000 new jobs via expanding Korea’s public sector President Moon vowed to create over 340,000 new government social service jobs and over 140,000 new government jobs in public safety and security, while converting 300,000 non-regular workers to permanent workers.  A non-regular worker, in Korea, is a worker without employment security. Thus, the conversion of

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Guidelines on Rules of Employment & Guidelines on Fair Personnel Management Withdrawn by Korean Ministry of Employment

Inline with the labor union and employee-focused promises of the President Moon Administration, the Ministry of Employment & Labor has withdrawn the impeached President Park’s Guidelines on Rules of Employment & Guidelines on Fair Personnel Management to the regret of most of industry.  The withdraw of the Guidelines does not change the present state of Korean Labor & Employment Law. Ex-President Park’s Guidelines on Rules of Employment, inter alia, noted procedures to amend the rules of employment of a company even without the mandated consent of the employees and the Guidelines on Personnel Management noted a procedure and reasons to terminate poor performing employees.  The Guidelines, together, were a means, in part, to express an opinion and clarify issues, seemingly, with the purpose to to add more labor flexibility to a system that is perceived to be overly protective of employees.  Korea, in international surveys, is rated as have one

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Hiring English-Speaking Korean Labor Lawyers in Korea

In most cases involving employment issues concerning foreign language teachers and hagwons (not company executives), Korean labor lawyers may not be a cost-effective means of handling your dispute. Often a Nomusa (노무사) is an adequate means to resolve the dispute with your employer. A Nomusa is, however, often not adequate for high-net worth individuals, company executives and for complex cases.  These type matters, often, should be filed to a court or shall be, likely, appealed from a Korean Labor Board to a court.  A Nomusa may not handle cases in Korean Courts.  Additionally, often the skills and experience of Korean lawyers are essential in the more complex, unique and many cases concerning foreigners. Simple, a Nomusa is a licensed labor professional (not a “Labor Lawyer”). These individuals, often, market themselves as Korean Labor Attorneys, however, this title is not an accurate title for these individuals.  A Nomusa is not an

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Increased Scrutiny of Employers by Korean’s Ministry of Employment & Labor under President Moon’s Administration: HR Audit Needed by Korean Employment Lawyers

Many Korean Employment Lawyers are taking note of the recent initiative by Korea’s Ministry of Employment & Labor.  At the end of June of 2017, the Ministry announced an “Unfair Labor Practice Eradication Initiative.” This Initiative intends to investigate and punish perceived “unfair labor practices” of employers in Korea by having the Ministry of Employment & Labor conduct more audits of companies and provide punishment for those perceived to be in violation of Korea’ Labor Law.  It is time to do an internal audit of the labor practices of your company.  The audits completed by Labor Lawyers (not actually lawyers usually- usually NoMusa – licensed labor professionals) is, often, not adequate.  These individuals are unable to take cases to the court and, typically, do not have the nuanced necessary to adequately advise on more complex labor matters concerning strategy.  The “Unfair Labor Practice Eradication Initiative” shall: Increase the Frequency &

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English-speaking Korean lawyers and International Lawyers at International Law Firm in Korea discussing issues of Korean Law

IPG Legal is a leading client-focused international law firm with offices in Korea that is, often, selected over the ubiquitous Korean Law Firms when success is essential and success depends on nuanced street-smart advice, proactive  and unconflicted representation. Our attorneys are, intentionally. different from the crowd.  From our retired judge partners to our junior associates, we are all trained with an intense focus on client success, lawyer proactivity, and to understand the nexus between your commercial and legal needs. Our attorneys shall never push to you useless memos, non-nuanced legal advice or get you into litigation without an honest assessment of the merits and shortcomings of the matter. We are  – intentionally different from the crowd.  Globally Experienced – Locally Connected.  We are IPG.  Korean Legal Practices Korean Antitrust, Competition & FTC Arbitration, Int’l & Domestic Korean Civil Litigation Korean Criminal Defense Korean Corporate Law & Compliance Korean Employment, Labor &

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Termination after Childcare Leave in Korea: Childcare Leave Law in Korea

Korea’s generous Childcare Leave Law poses difficulties to many smaller employers in Korea.  The Childcare Leave Law, in Korea, allows for a one year period of leave per child under the age of seven. Employers, often, are required to hire a replacement employee when the employee departs for this childcare leave.  This situation, often, leads to an employee returning to employment with little to no work to do. So can an employer, in Korea, layoff the returning Korean worker for the lack of a position for the worker? The answer is, typically, NO.  Notwithstanding, the issue of tenure and the selection criteria for layoffs, the law specifically notes the following. I. Childcare Leave Law: Prohibition of Termination of Employee based on Childcare Leave Equal Employment Opportunity and Work-Family Balance Assistance Act Art. 19 notes: (3)”No employer shall dismiss or take any disadvantageous measure against a worker on account of childcare

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Can you Revise Employment Rules in Korea without the Agreement of Employees?

The Guidebook on Wage System Reform, published by the Korean Ministry of Employment & Labor, has sparked more interest, in the private sector, than the revamping of Korea’s wage system based on seniority. The major issue, in this regard, is if the Rules of Employment of a company may be amended, without violating the Labor Standards Act of Korea (“LSA”), when “wage system reform” is not consented to by a majority of the employees or the trade union. Numerous Korean government agencies have successfully moved to a more merit-based promotion and bonus system from a strict seniority-based wage system.  The private sector has carefully watched this trend, because of public failures by noted international conglomerates. The private sector, to date, has been slow to move to a merit-based wage or like system because of these public failures. The MOEL’s Guidebook on Wage System Reform (“Guidebook”) was drafted to be a

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English-Speaking Korean Labor & Employment Lawyers in Korea

This Korean Law Blog is brought to you by English-speaking Korean labor lawyers & employment lawyers working for IPG Legal – an international law firm with offices in Korea.  Sean is the author of this blog and English-speaking Korean lawyers contribute to the blog.  Please find below a few of the most recent matters we have worked on. Leading rating services have rated IPG attorneys as leading lawyers working in Korea and throughout Asia. To learn mall, please drop us an email or give us a call.         IPG’s Korean Labor & Employment Law Team Experience Drafted Korean employment agreements, employee handbooks, employment rules and formed a pension and corporate compliance system for a NASDAQ-listed company with a subsidiary in Korea. Oversaw a leading manufacturer’s reduction of 5% of the headcount in China and Korea.  Prevailed in cases of foreign employees of Korean companies who were wrongfully dismissed

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