Category: Labor

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Recently I got an email question from a foreign teacher working for a Korean private university.  He’s wondering why the university is insisting on a retirement pension plan instead of the severance payment.

There is an act called Pension for Private Teachers and Staff Act(PPTSA) in Korea, which regulates severance payment issues in private schools.  As a matter of law, PPTSA is applied prior to the GWRBA(Guarantee of Workers’ Retirement Benefits Act) and it allows the private schools to set a retirement pension plan for its employees instead of the severance payment.

With respect to the relationship between the employment contract and the pension plan under PPTSA, Private Universities usually, pursuant to the PPTSA, put the retirement pension clauses, instead of severance payment, in the Rules of Employment(RE) of its own.  As a matter of law, the RE is applied to all the workers in the workplace.  That means, if there exists (more…)

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Recently we got a question from a gentleman asking what the exact meaning of the below, an Internet post he’d found:

“It is possible that as of 2011, what was severance pay will be vested in the country’s pension plan. This means that workers (including teachers, etc.) will no longer receive one month’s pay for every year worked at the end of their contract. The legislation is set to discuss/vote on this in 2009.”

He was worrying that he might lose his right to severance payment under Korean law.  But the above article is quite misleading.  The severance payment is the property right of workers.  It can not be vested to anything without workers’ consent.  If the article says the amended law will give the employer or any party but the workers the power to vest the severance payment to the country’s pension plan (or whatever) without workers’ consents, it definitely violates (more…)

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Recently a foreigner asked some questions to us regarding Korean employment law issues.  He has a problem in his Visa status here in Korea and the employer refused to pay some amount to him, a matter of quite frequent occurrence here in Korea, which I’m afraid of though.

Basically foreigners have the same rights as Koreans under Korean civil and/or labor law. Even though the employee does not  have a valid working Visa, it does not hinder him or her from executing his or her right under Korean law.

If the company has no justifiable cause to withhold the money earned by the employee, it constitutes a breach of contract and/or an unlawful act.  The employee can file a lawsuit against the company or put a provisional attachment on its assets.

Please note, however, that the company could threaten the employee saying “Unless you keep quiet, I’ll inform the Immigration office of your illegal stays in Korea and make you expelled!” as is often the case with vicious small entrepreneur in Korea.  Practically it is the primary reason that makes many foreigners working without visa hesitate to take legal (more…)

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Recently we got a question from a foreigner.  She was wondering if she could take any legal action against her Korean ex-employee who harassed her by spreading false information about her and telling the customers not to do a business with her.

From a perspective of Korean Criminal law, currently there is no general legislation on regulating the harassment or stalking.  The respective laws have its own regulations on which behavior constitutes a certain crime and what remedies the harassed party is entitled to seek.

Generally speaking, a person who defamed another by publicly alleging facts (false or even true) shall be punished by imprisonment or imprisonment without prison labor for not more than 2 years or by a fine not exceeding five million won according to Criminal Act of South Korea.

Notably, any person who sends out letters or text messages inflicting fear or apprehension to another person repeatedly shall be punished by imprisonment for not more than 1 year or (more…)

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Recently I got a question about a jurisdiction of legal dispute arising of a labor contract made between a Korean company and a foreigner here in Korea.  The foreigner told me his contract had an exclusion clause which ruled out the jurisdiction of Korean court.

According to Article 2(1) of the Private International Act, a Korean court shall have the jurisdiction over an international trial in the case where the parties or the issue has substantial relation to South Korea, and according to Article 28(5) of PIA, the parties of an employment contract may make an agreement on the international jurisdiction only in cases where a dispute has already occurred or an employee is allowed to bring a lawsuit to a court in addition to the governing court in accordance with the PIA.

So even if parties of an employment agreement had agreed to rule out the jurisdiction (more…)

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Recently we got a question about the definition of “sexual harassment” under Korean law.

Article 3-4 of The Framework Act on Women’s Development defines a “Sexual Harassment” as “sexual comments and behaviors incurring sexual mortification and repugnance, or giving disadvantages in employment for not accepting sexual advances or other request, on the part of employees in public sector, employers, or workers, using their status or job position related to jobs or employment relations, etc.”.

In order to be liable for a sexual harassment, the person does not necessarily have to have a sexual motive or intent. It can be inferred and proved by totality of situation such as the relationship with the person, place and circumstance of the behavior, content of the clear and referred response of the behavior, content and degree of the act, whether the act is ephemeral or short-timed or continual. There must be an act that provokes sexual mortification and repugnance to an average person who are in the similar situation generally, and from that the average person should feel the sexual mortification and repugnance. Therefore, a sexual harassment can not be established not merely for the reason that counterpart felt sexual mortification and repugnance (more…)