Last Updated March 08, 2019

Law and Practice

Authors



Yoon & Yang LLC (Seoul - HQ) 's Employment and Labour Practice Group consists of 17 attorneys and other professionals who all concentrate solely on employment issues. The type of issues that the Practice Group has recently represented are illegal worker dispatches, discriminations among different type of workers, implementation of performance-based salary system, protection of non-regular workers, and ordinary wage issues. The firm's key areas of practice are general HR issues, including performance-based salary systems, labour union activities, collective bargaining agreements and disciplinary regulations, employment issues in mergers and acquisitions, employment issues on corporate restructuring, representation in labour disputes in civil, criminal and administrative proceedings.

Vacations and Vacation Pay

The most typical types of vacation available for employees are (i) weekly holidays and (ii) annual paid leaves.

Weekly holiday (under Article 55 of the Labor Standards Act and Article 30 of the Enforcement Decree of the Labor Standards Act) refers to a paid vacation given to employees who have “worked continuously” for the contractual working days in a single week. If employees provide such “continuous work” for contractual working days in one week, employers are required to grant, on average, more than one paid vacation per week. Typically, employers designate Sundays as the weekly holiday, but employers are free to designate other days as the weekly holiday.

Annual paid leaves are prescribed under Article 60 of the Labor Standards Act, and it refers to 15 days of paid vacation granted to employees who have worked for at least 80% of a year. If an employee has provided continuous work for less than a full year or worked less than 80% of a year, then one day of paid vacation is granted as annual paid leave for every month in which an employee provided continuous work.

Required Leave

Leaves that are statutorily guaranteed include maternity leave, paternity leave, childcare leave and menstrual leave.

Maternity leave is covered under Article 74(1) of the Labor Standards Act, and it refers to a leave granted to pregnant women prior to and after childbirth. Statutes on maternity leave are mandatory provisions and, thus, neither the employer’s right to adjust the timing of such leave nor an employee’s forfeiture of the right to take such leave are recognised under the law. Employers must grant a total of 90 continuous days of leave prior to and after childbirth, and at least 45 days out of such 90-day leave must be allocated after childbirth.

Paternity leave is covered under Article 18-2 of the Equal Employment Opportunity and Work-family Balance Assistance Act (the “Equal Employment Opportunity Act”). If an employee requests paternity leave due to the employee’s spouse’s childbirth, an employer is obliged to grant a leave of at least three days and up to five days. However, an employee may not request paternity leave after 30 days from the date the employee’s spouse gives birth to a child. If paternity leave is granted, the first three days of the leave are on a paid basis.

Childcare leave is covered under Article 19 of the Equal Employment Opportunity Act. If an employee requests childcare leave in order to tend for his or her child who is (i) eight years of age or younger or (ii) in second grade or lower in elementary school, then an employer must permit a childcare leave of up to one year. Further, upon returning from the childcare leave, the employer must reinstitute the returning employee back to (a) the same position or (b) a position with a same wage level as prior to taking the childcare leave. In addition, employers are prohibited from terminating the employee or treating the employee disadvantageously on the basis of such employee taking a childcare leave. Moreover, employers are prohibited from terminating employees who are on a childcare leave (see Article 19 of the Equal Employment Opportunity Act).

Menstrual leave is covered under Article 73 of the Labor Standards Act, and employers must grant one day of unpaid menstrual leave per month upon request from a female employee.

Confidentiality and Non-Disparagement

There are no provisions under the Korean labour laws that restrict employers from requiring confidentiality and non-disparagement obligations from their employees. Therefore, employers may enter into confidentiality and non-disparagement agreements with employees. Employees’ breach of such agreements would enable employers to take disciplinary actions. Further, if an employer suffers damages from an employee’s breach of confidentiality and non-disparagement agreements, then the employer would be able to seek civil damages.

In additional to contractual agreements on confidentiality, trade secrets, as defined under the Unfair Competition Prevention and Trade Secret Protection Act (the “Trade Secret Act”), are legally protected.  According to Article 2 of the Trade Secret Act, trade secrets refer to information (including production methods, sale methods and useful technical or business information for commercial activities) that (i) is not publicly known, (ii) is the subject of reasonable efforts to maintain its secrecy, and (iii) has independent economic value.

In other words, for a trade secret to be protected under the law, it must be undisclosed, kept confidential, and useful. Undisclosed trade secrets refers to those that are not publicly known, and the confidentiality element requires the trade secret to be a secret that deserves legal protection. Lastly, a trade secret is useful if it has an independent economic value.

Therefore, so long as a trade secret satisfies all of the three requirements above, then a person (including employers) may request the court for a prohibition or preventive order against any person (including employees) who infringes or is likely to infringe trade secrets, if the business interest of the employer who possesses the trade secrets suffers damages or is likely to suffer damages due to such infringement (see Article 10(1) of the Trade Secret Act). Further, Article 11 of the Trade Secret Act provides that a person who damages, through an intentional or negligent infringement of trade secrets, the business interest of another person who possesses such trade secrets is liable for compensation for such damages.

Employee Liability

Korean labour laws do not have provisions that restrict or limit an employee’s contractual or tort liabilities. However, the Korean Supreme Court has previously held that, where an employer suffers direct damages due to an employee’s tortious act committed while performing his or her work, then such employer’s right to claim damage compensation from the employee is limited, based on the notion of fair distribution of the damages, to an amount that is deemed appropriate under the principle of good faith. In this regard, employee liability can be deemed to be partially limited.

On a separate note, obligations of employees are not expressly governed under the Labor Standards Act. Rather, employees’ obligations are stipulated under the employers’ rules of employment. Some of the common obligations of employees include, among others, obligations to (i) arrive at work on time, (ii) not hold concurrent positions, (iii) keep secrets acquired in connection with work confidential, (iv) not destroy or remove equipment or facilities from the company, (v) not engage in unlawful conducts, (vi) expend full efforts at work, and (vii) perform work in a diligent manner in good faith. Breach of such obligations and responsibilities may subject the relevant employees to disciplinary actions. Further, breach of the foregoing obligations may be deemed as tortious acts under the Civil Act if the breach causes damages to the employer, in which case the relevant employee may be held liable.

Yoon & Yang LLC

ASEM Tower, 517 Yeongdong-daero
Gangnam-gu
06164
Seoul
Korea

+82 2 6003 7000

+82 2 6003 7800

yoonyang@yoonyang.com www.yoonyang.com
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Authors



Yoon & Yang LLC (Seoul - HQ) 's Employment and Labour Practice Group consists of 17 attorneys and other professionals who all concentrate solely on employment issues. The type of issues that the Practice Group has recently represented are illegal worker dispatches, discriminations among different type of workers, implementation of performance-based salary system, protection of non-regular workers, and ordinary wage issues. The firm's key areas of practice are general HR issues, including performance-based salary systems, labour union activities, collective bargaining agreements and disciplinary regulations, employment issues in mergers and acquisitions, employment issues on corporate restructuring, representation in labour disputes in civil, criminal and administrative proceedings.

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