The Legal 500

1. The Obligation to Hire Illegal Dispatch Workers Arises Immediately When the Violation is Found.

Starting August 2, 2012, employers that use dispatch workers for positions that are not permitted to be held by dispatched workers, or those employers that receive services from a manpower agency not duly licensed to engage in the business of dispatching workers, will be required to immediately hire such dispatched workers as their employees regardless of the duration of the engagement of such dispatched workers.

As such, it is recommended that employers review their outsourcing and/or other service agreements in order to minimize the risk of violating the dispatch laws.

2. Changes in the Process to Redress Discrimination Against Fixed-Term and Part-Time Workers

Starting August 2, 2012, the Minister of Employment and Labor may directly issue a corrective order to an employer that discriminates fixed-term and/or part-time workers, even in the absence of the aggrieved workers' petition to the Labor Commissions. Further, the statute of limitations applicable to a worker's petition to the Labor Commissions will be increased from three months to six months.

In light of such changes, the Ministry of Employment and Labor will likely be more aggressive in conducting audits to investigate possible discriminatory practices in workplaces. Therefore, it is recommended that employers review their existing practices with regard to fixed-term and/or part-time workers to gauge the possibility of risks, if any, of violation relating to the laws and regulations pertaining to fixed-term and/or part-time workers.

3. Other Changes Effective From August 2, 2012

• Under the new annual leave system, workers will be granted one day of leave per every month of full attendance, even if their attendance in the previous year is less than 80%. Additionally, employers are required to encourage their employees to use their annual leave days beginning six months prior to the end of the yearly cycle used to re-compute the number of annual leave days.

• The number of hours employees are on standby shall be included in the employee's working hours, provided that the employees were on standby for the work-related purposes pursuant to the direction and control of their supervisor.
  

• Maternity leave shall be granted in case a female employee experiences certain pregnancy-related events, such as a miscarriage.
  

• Male employees shall be granted a total of five days' leave for their spouses' childbirth, of which three or more days shall be a leave with pay. (*Applicable to businesses with less than 300 employees from February 2, 2013.)
  

• An employee's application for family care leave shall be granted unless the facts and circumstances fall under certain exceptions defined under the law such as the employer's difficulty in finding a replacement worker. (*Applicable to businesses with less than 300 employees from February 2, 2013.)
  

• The period a fixed-term or dispatched worker used as childcare leave shall be excluded from the worker's year of service so that the term of employment of such workers, the maximum of which by law is two years, is tolled during his/her absence.
  

• Fixed-term workers who have been working for their employer for less than one year shall not be subject to the regulations on the limitation on salary reduction (i.e., 90% of regular workers' salary) applicable to fixed-term workers.
  

By Weon Jung Kim and Hyun Jae Park of Kim & Chang

For more information please visit www.kimchang.com