Korean Labor Law Update

Statutes and Regulations

1. Minimum wage set at KRW9,860/hour for 2024

Pursuant to the Korean Minimum Wage Act, the government announced the 2024 minimum wage as KRW9,860 (approx. US$7.30) per hour. This is roughly a 2.5% increase from the 2023 minimum wage (KRW9,620 per hour).

The 2024 hourly minimum wage corresponds to a monthly minimum wage of KRW2,060,740 assuming a standard 40-hour work week with 8 hours of paid weekly time off (totaling 209 hours a month).

2. Scope of workplaces required to have rest facilities expanded

Effective August 18, 2023, the scope of workplaces that are required to have rest facilities has broadened. Please refer to our previous Labor Law Update (Korean Labor Law Update – 1st Half of 2023) for further details.

3. Periodic health-and-safety training frequency changed from quarterly to biannual

Pursuant to Korea’s Occupational Safety and Health Act (“OSHA”), employers that regularly employ five or more employees are required to provide periodic health-and-safety training to their employees. This health-and-safety training requirement is subject to industry-based exceptions, and a business or workplace that exclusively employs workers who do not perform work outside the office is excluded (but the Ministry of Employment and Labor interprets this office-workers exception very narrowly). The health-and-safety training can be provided in-person, virtually, or through pre-recorded online sessions, and can be provided by third-party agencies.

In the past, this periodic training was required every quarter. However, effective from September 28, 2023, pursuant to an amendment to the relevant OSHA regulations, employers are only obligated to provide this training biannually. Office workers and sales workers must now complete a minimum of six hours of training every six months, while other types of employees must undergo at least twelve hours of training during the same period. Please note that additional training requirements may apply to specific groups of workers or for certain training programs, which may not be mandatory for all employees.

If an employer violates this periodic training requirement, a fine of KRW 100,000 per eligible worker will be imposed for the first violation, KRW 300,000 for the second violation, and KRW 500,000 for the third violation.

The following topics must be included in a business’s periodic health-and-safety training:

1)            industrial safety and accident prevention;

2)            industrial health and occupational disease prevention;

3)            risk assessment;

4)            health promotion and disease prevention;

5)            hazardous and dangerous work environment management;

6)            industrial health-and-safety laws and industrial accident compensation insurance system;

7)            job-related stress prevention and management; and

8)            prevention and management of health impairments caused by workplace harassment, customer verbal abuse, etc.

Cases

Korean Supreme Court finds that discrimination between government contract employees and civil servants is not unlawful “social status” discrimination.

Korean law prohibits unreasonable discrimination in employment based on various protected characteristics, which include “social status.” Social status is not defined by statute, and plaintiffs have sought to rely on “social-status” discrimination claims where the discrimination is not based on a more clearly-defined protected characteristic. For example, under Korean law, an employer’s unreasonable discrimination on the basis of an employee’s fixed-term employment contract status is expressly prohibited by statute. But it has been a subject of debate for some time whether, in other cases, one’s contract status can be a form of “social status” subject to anti-discrimination rules—with some lower-court decisions finding that it can be. The Supreme Court, in a 7 to 5 decision, has appeared to reject this approach when applied to discrimination between civil servants and contract employees working for the government (public road maintenance workers). But the opinion was sharply divided, and the majority left open the possibility that social-status discrimination claims based on contract status may still be possible in the private sector.

In this case, the plaintiffs were indefinite-term employees who performed road maintenance and monitoring work, who had been hired by the municipal heads of the Ministry of Land, Infrastructure and Transport. The plaintiffs filed discrimination claims in court, arguing that it was unlawful “social-status” discrimination to deny them various forms of compensation and benefits—such as family allowances and performance bonuses, etc.—to which civil servants performing similar duties were entitled. Both the trial and appellate courts dismissed the claims. Those courts decided that, although the plaintiffs’ status as indefinite-term contract employees was a form of “social status,” the analogous civil servants were not an appropriate comparison group, and in any case there were reasonable grounds for disparate treatment.

The majority opinion of the Supreme Court held, contrary to the lower courts, that the plaintiffs’ contract status was not a form of “social status” subject to anti-discrimination rules in relation to civil servants. The Court also agreed with the lower courts that the civil servants were not an appropriate comparison group. The Supreme Court distinguished the civil servants from the contract employees based on the following factors: (1) the civil servants form a relationship with the state or local government that is a public relationship in nature, and they bear particular legal obligations (whereas the plaintiffs are only required to follow the applicable employment rules); (2) the working conditions of the civil servants are determined according to the applicable laws and regulations and are not subject to improvement through collective agreements; (3) the possibility of a civil servant’s position and duties being changed are greater than for the plaintiffs (because they can be reassigned to very different roles); and (4) that the compensation system for civil servants is unique in that it is not only remuneration for the work provided but is also intended to preserve a stable civil service job system.

The dissent criticized the majority’s reasoning, particularly the conclusion that the plaintiffs’ contract status is not a form of “social status” subject to anti-discrimination rules in relation to civil servants. The dissent argued that it either is a form of social status or it is not, and the relationship to civil servants is relevant only respecting whether they form an appropriate comparison group.

After the decision was issued, the Supreme Court issued a press release explaining that the decision relates to civil servants and does not address the question of discrimination among private-sector employees based on contract status. In light of this decision, it is unclear whether an employee’s indefinite-term contract status or former fixed-term status would still be deemed a kind of social status in private entities. Further decisions may be required to establish the scope of “social status” for private entities’ employees.

Korean Supreme Court finds employees justified in covering security cameras installed without proper consultation.

This case involved union members who covered various security cameras at the work site, and were prosecuted and convicted for interference with the employer’s business.

On June 29, 2023, the Supreme Court upheld the guilty verdicts against the union members with respect to their interference with the employer’s security cameras that were not aimed at the employees themselves, such as cameras installed at the fences.

But the Supreme Court ruled that the employees were justified in covering up cameras that were aimed at the employees or could regularly film them, and had been installed without the proper procedures required by Korean privacy laws for filming the employees in their workplace and at the entrance.

The Court first analyzed whether there was an applicable general exception to the legal requirement to obtain individuals’ consent to collect their personal information, under Korean privacy law. The Court made clear that such exceptions should be construed narrowly, and found that no exceptions applied. The Court reasoned that (i) multiple employees’ personal information would be infringed by the CCTV monitoring, regarding how the employees work and enter/leave the workplace; (ii) recording through CCTV where employees’ work could be monitored is a significant infringement on the data subjects’ rights; (iii) the employees had not given their consent to installation of the CCTV cameras; and (iv) there was no record of any effort by the Company to find alternative approaches to protect its property and prevent fire; thus, the Company could not rely on an exception based on a “manifestly superior” interest to the employees’ privacy rights.

The Court further explained that there had also been no labor-management consultation. The Court explained that installation of CCTV cameras which would record employees at work required a consultation with the employer’s labor-management council, which had not taken place.

The Court then found that it was a “justifiable act” under the Criminal Code, and thus not criminal, for the defendant-employees to cover the cameras that faced their workplace. The Court found covering these cameras justified because (1) the purpose was to protect their basic right to privacy, which was infringed by the illegitimate CCTV installation, and was not meant to interfere with the Company’s efforts to protect its property; (2) the means used were proportionate, in that they merely temporarily covered the CCTV cameras with black plastic bags, and did not destroy or uninstall them; (3) the employees chose the CCTVs that actually would monitor how the employees work; and (4) despite the objections of the employees, the company had decided to continue to use the CCTV cameras.

Employers who intend to install CCTV cameras at the workplace should carefully examine what procedures and/or consent are required.

By Yulchon LLC, South Korea, a Transatlantic Law International Affiliated Firm.

For more information on this topic, please contact korealabor@transatlanticlaw.com.

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 42 Brook Street, London W1K 5DB, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.