{"id":135028,"date":"2026-04-07T13:44:13","date_gmt":"2026-04-07T13:44:13","guid":{"rendered":"https:\/\/my.legal500.com\/guides\/?post_type=comparative_guide&#038;p=135028"},"modified":"2026-04-07T13:44:13","modified_gmt":"2026-04-07T13:44:13","slug":"south-korea-employment-and-labour-law","status":"publish","type":"comparative_guide","link":"https:\/\/my.legal500.com\/guides\/chapter\/south-korea-employment-and-labour-law\/","title":{"rendered":"South Korea: Employment and Labour Law"},"content":{"rendered":"","protected":false},"template":"","class_list":["post-135028","comparative_guide","type-comparative_guide","status-publish","hentry","guides-employment-and-labour-law","jurisdictions-south-korea"],"acf":[],"appp":{"post_list":{"below_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Sigong Law P.C.<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2026\/03\/SIGONG-LAW-P.C.jpg\"\/><\/span><\/div>"},"post_detail":{"above_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Sigong Law P.C.<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2026\/03\/SIGONG-LAW-P.C.jpg\"\/><\/span><\/div>","below_title":"<span class=\"guide-intro\">This country specific Q&amp;A provides an overview of Employment and Labour Law laws and regulations applicable in South Korea<\/span><div class=\"guide-content\"><div class=\"filter\">\r\n\r\n\t\t\t\t<input type=\"text\" placeholder=\"Search questions and answers...\" class=\"filter-container__search-field\">\r\n\t\t\t<\/div>\r\n\r\n\t\t\t\r\n\r\n\r\n\t\t\t<ol class=\"custom-counter\">\r\n\r\n\t\t\t\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does an employer need a reason to lawfully terminate an employment relationship? If so, state what reasons are lawful in your jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Korea is not an at-will termination jurisdiction. Instead, employee terminations in Korea require just-cause. Just-cause is a very high standard to satisfy. Courts have defined just-cause abstractly as a \u2018cause that is attributable to the employee that renders the continued employment impossible from a societal perspective.\u2019<\/p>\n<p>Courts consider the totality of the circumstances when determining whether just-cause existed for an employee\u2019s termination. Examples of reasons that may constitute sufficient just-cause include, but are not limited to, (i) serious and repeated violation of an internal employment regulation, (ii) conviction of a serious crime, (iii) falsification of one\u2019s resume and detrimental reliance by the company, (iv) disclosure of trade secrets, and (vi) workplace sexual harassment. A complete business closure may also constitute just-cause under Korean law.<\/p>\n<p>A key exception to the just-cause requirement: the just-cause requirement does not apply to workplaces with fewer than five employees.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What, if any, additional considerations apply if large numbers of dismissals (redundancies) are planned?  How many employees need to be affected for the additional considerations to apply?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Layoffs or terminations for redundancy may also be referred to as \u2018terminations for managerial reasons.\u2019 The Labor Standards Act (LSA) sets forth the requirements for a lawful layoff (collectively, the \u2018Layoff Requirements\u2019). Please note that, as a general proposition, satisfying the Layoff Requirements is more difficult than the just-cause requirement for individual terminations. The Labor Relations Commission (LRC) and the courts also tend to review layoff case with greater scrutiny than individual terminations due to the large number of employees involved in layoffs.<\/p>\n<p>The Layoff requirements are as follows:<\/p>\n<ol>\n<li>An imminent managerial necessity for the layoff must exist (e.g., severe financial strain over a period of time without a reasonable prospect of improved financial conditions);<\/li>\n<li>The employer must make best efforts to avoid the layoff;<\/li>\n<li>The employer must establish reasonable and fair criteria regarding those to be laid-off;<\/li>\n<li>The employer must consult in good faith with the employee representative or labour union (if majority union exists) on matters related to the layoff;<\/li>\n<li>Notice must be provided at least 50 days before the scheduled layoff date to the employee representative or labour union (if majority union exists) and there must be good faith consultation in connection thereto; and<\/li>\n<li>The employer must submit a report to the Ministry of Employment and Labour (MOEL) if the number of employees to be laid off meets certain threshold set forth in the Enforcement Decree to the LSA, which number differs depending on the size of the labour force in the place of business.<\/li>\n<\/ol>\n<p>Of the Layoff Requirements, the \u2018imminent managerial necessity\u2019 requirement is considered the gateway requirement, the absence of which would render layoffs as a non-viable option.<\/p>\n<p>There is no minimum number of employees required in order to trigger the requirements above. Thus, a layoff against just one employee would still require the layoff requirements above are met.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What, if any, additional considerations apply if a worker\u2019s employment is terminated in the context of a business sale?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>A business sale may broadly fall into two deal structures: (1) business transfer and (2) asset purchase\/transfer. The employment law implications differ depending on the deal structure of the business sale.<\/p>\n<p><strong>1. Business Transfer:<\/strong> In a business transfer, employees of the relevant business will, in principle, transfer automatically to the buyer; provided that, the transferring employees will have the right to opt-out of the transfer and remain with their current employer (i.e., seller). If an employee chooses to remain with his or her current employer, the employer must satisfy the termination standards as described in Questions 1 or 2 to terminate the employee. A business transfer or sale does not, in and of itself, constitute just-cause for employee termination.<\/p>\n<p><strong>2. Asset Transfer<\/strong>: In an asset transfer, employees of the relevant business do not transfer automatically. The employees of a particular business unit that was sold will remain as the company\u2019s employees, and the company must satisfy the termination standards in Questions 1 or 2 to terminate the employee. A redundancy due to an asset transfer or sales does not, in and of itself, constitute just-cause for employee termination.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Do employees need to have a minimum period of service in order to benefit from termination rights?  If so, what is the length of the service requirement?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>As long as the employees are employees covered under the LSA and the employees have been employed for at least three months, there is no statutory minimum period of service in order for the employees to benefit from termination rights discussed in Questions 1 to 3 and 5.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What, if any, is the minimum notice period to terminate employment?  Are there any categories of employee who typically have a contractual notice entitlement in excess of the minimum period?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under the LSA, generally speaking, an employer must provide at least thirty days\u2019 written notice to the employee. Alternatively, an employer may provide thirty days\u2019 compensation instead of advance notice. Please note that the latter will merely permit the employee to terminate an employee without the notice period.<\/p>\n<p>An employer must provide a written termination notice indicating the effective termination date and the grounds for termination, irrespective of whether advance notice is provided, or compensation is made instead of the advance notice.<\/p>\n<p>Under limited circumstances, employers may be exempt from the obligation to provide thirty-day advance notice. They include, for example, employee intentionally causing severe harm to the company.<\/p>\n<p>Employers are not required to provide the thirty days\u2019 notice in advance for employees who have been employed for less than three consecutive months, unless stated otherwise in the applicable employment contract or the rules of employment.<\/p>\n<p>There are no specific categories of employees who are typically provided with a longer contractual notice period as each case of notice entitlement would vary widely, depending on the prevalent practice of the employer.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is it possible to make a payment to a worker to end the employment relationship instead of giving notice?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, please see Question 5.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can an employer require a worker to be on garden leave, that is, continue to employ and pay a worker during their notice period but require them to stay at home and not participate in any work?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, an employer may instruct an employee to remain at home during the notice period. This form of leave is also referred to as an \u201cadministrative leave\u201d in Korea. It is common for administrative leaves to be fully paid to minimize legal challenges from the employee.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does an employer have to follow a prescribed procedure to achieve an effective termination of the employment relationship? If yes, describe the requirements of that procedure or procedures. Is an employee entitled to appeal against their termination?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In principle, an employer must: (1) adhere to the disciplinary procedures (if any) outlined in its policies or regulations or work rules; and (2) provide a written notice of termination (either served in advance or with immediate effect pursuant to an appropriate payment in lieu thereof) \u2013 as described in Question 5 on written termination notices. If the termination takes place without going through the disciplinary procedure, or the employer does not provide proper written notice of termination that contains grounds for termination or the date, then the termination is not effective.<\/p>\n<p>If the employer does not have any prescribed disciplinary procedures in its policies, regulations, or work rules, the employer is not required to have any particular procedure (except for statutory procedures such as the notice requirement in Question 5). However, in practice, even if the company does not have prescribed disciplinary procedure, most employers choose to provide a form of due process to the employee, which includes a reasonable notice period for a disciplinary hearing and a chance to present arguments or submit evidence.<\/p>\n<p>In some cases, immediate termination without prior procedure is permitted. This form of termination is called \u2018general termination.\u2019 General terminations include situations where applying any procedures is impractical such as the death of an employee, an employee reaches retirement age, expiration of the employment term, or the incapacitation of an employee that no longer allows him to perform his job, and loss of a prerequisite license to continue doing the job.<\/p>\n<p>If there was a procedural defect in terminating an employee, the termination would not be valid, and the employee may present legal challenge to the termination. Please see Question 9 for details.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">If the employer does not follow any prescribed procedure as described in response to question 8, what are the consequences for the employer?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>If the employer does not follow the prescribed procedure, the termination would be held invalid for procedural error. If the employee challenges the termination to the LRC or the courts, the available remedies are reinstatement and back-pay.<\/p>\n<p>If an employer chooses not to comply with the LRC\u2019s order, LRC will impose a compulsory fine of up to KRW 30 million (approx. USD 20,466 ). This compulsory fine can be levied up to twice per year and up to four times in total. The compulsory fine would be imposed even though the employer formally appeals the LRC\u2019s order; provided that, if the decision is subsequently reversed, the compulsory fine would be returned.<\/p>\n<p>Please note that these consequences of an invalid termination are the same for layoffs.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How, if at all, are collective agreements relevant to the termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the case where a collective agreement is entered into between an employer and a trade union that includes certain requirements (substantive or procedural) regarding terminations, the employer must follow the terms of such collective agreement. If an employer fails to adhere to its disciplinary procedures (including those stipulated in applicable collective agreements), the termination may be held invalid.<\/p>\n<p>Please note that an employer must follow the requirements (substantive or procedural) regarding terminations in the collective agreement for all union and union-eligible employees in case the trade union is a majority union. If the trade union is not a majority union, the requirements (substantive or procedural) regarding terminations (if any) in the collective agreement apply only to union members.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does the employer have to obtain the permission of or inform a third party (e.g local labour authorities or court) before being able to validly terminate the employment relationship? If yes, what are the sanctions for breach of this requirement?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Employers are, in general, not required to obtain the permission of or inform a third-party (e.g., local labour authorities or the courts) before terminating individual employees.<\/p>\n<p>However, in the case of a layoff, one of the Layoff Requirements includes filing a report to the MOEL if the number of workforce and the number of those being laid off meet the requirements in the labour law. However, if the first five Layoff Requirements are satisfied (please see Question 2), the validity of the layoff would not be diluted simply because the employer fails to make this report. Please note that if a layoff is held invalid, the available remedies are reinstatement and backpay for the terminated employees.<\/p>\n<p>Please refer to Question 9 for more details regarding the consequences of an invalid termination.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What protection from discrimination or harassment are workers entitled to in respect of the termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Of the various protections from discrimination or harassment, the most pertinent protections may be as follows:<\/p>\n<p><strong>Under the LSA:<\/strong><\/p>\n<ol>\n<li>An employer shall neither discriminate against employees based on gender nor accord discriminatory treatment (including termination) in relation to terms and conditions of employment on the ground of nationality, religion, or social status.<\/li>\n<li>An employer may not terminate an employee during a period of suspension of work for medical treatment of an occupational injury or disease and within thirty days immediately thereafter.<\/li>\n<li>An employer may not terminate a female employee during her maternity leave (as prescribed in the LSA) and for thirty days immediately thereafter.<\/li>\n<li>An employer shall not terminate or treat an employee unfairly for reporting a violation of the employment laws by the employer to the MOEL or a labor office inspector.<\/li>\n<li>An employer shall investigate any claim or incident of workplace sexual harassment or general workplace harassment. The employer must also maintain confidentiality during the investigation, take appropriate measures during and after the investigation for the victim(s), and make efforts to prevent secondary harm to the victims and witnesses. Furthermore, the employer must take disciplinary action without delay as necessary, and no adverse measures shall be taken against victims or those assisting the victims.<\/li>\n<\/ol>\n<p><strong>Under the Equal Employment Opportunity and Work-Family Balance Assistance Act:<\/strong><\/p>\n<ol>\n<li>No employer shall discriminate on the grounds of gender in retirement age limit, retirement, and termination of his\/her employee.<\/li>\n<li>No employer shall conclude an employment contract that stipulates marriage, pregnancy, or childbirth of female employees as grounds for retirement.<\/li>\n<li>An employer shall not terminate or take any other disadvantageous measures against an employee who has suffered sexual harassment on the job (in the workplace or from clients) or who has claimed that he\/she has suffered sexual harassment (in the workplace or from clients).<\/li>\n<li>No employer shall terminate or take any other disadvantageous measure against an employee on account of childcare leave, or dismiss the relevant employee during the period of childcare leave; provided that, this shall not apply where the employer is unable to continue his\/her business. Following the end of the childcare leave, the employer must also reinstate the employee back to the same work as before the leave or other work paying the same level of wages.<\/li>\n<li>No employer shall terminate or take any disadvantageous measures against an employee on the grounds of reduction in working hours during the period of childcare instead of taking the childcare leave. Following the end of the period of reduced working hours, the employer must also reinstate the employee back to the same work as before the leave or other work paying the same level of wages.<\/li>\n<li>No employer shall terminate an employee, deteriorate his\/her working conditions, or take any other disadvantageous measures against him\/her on the grounds of taking a family care leave.<\/li>\n<\/ol>\n<p><strong>Under the Act on the Prohibition of Discrimination against Persons with Disabilities and Remedy against Infringement of their Rights<\/strong><\/p>\n<p>No person may discriminate against anyone based on his or her disability, previous disability, or presumed disability.<\/p>\n<p><strong>Under the Act on the Prohibition of Age Discrimination in Employment and Elderly Employment Promotion<\/strong><\/p>\n<ol>\n<li>Employer may not discriminate against any of their workers or any person who wishes to work for the employer, on the grounds of age, without reasonable grounds in recruitment and employment.<\/li>\n<li>No employer may engage in any unfavourable treatment such as dismissal, transfer, or disciplinary action against an employee on the ground that the employee has filed a petition, lawsuit or report, or provided data, response or testimony regarding an act of age discrimination.<\/li>\n<\/ol>\n<p><strong>Under the Trade Union and Labor Relations Adjustment Act<\/strong><\/p>\n<p>Employer is prohibited from engaging in unfair labor practices, which includes (i) dismissal or unfavorable treatment of an employee on the ground that he or she has joined or intends to join a trade union, or have attempted to organize a trade union, or have performed other lawful act for the operation of the trade union and (ii) dismissal or unfavourable treatment of an employee on the ground that the employee has participated in justifiable collective activities, or that he or she has reported to or testified before the Labor Relations Commission concerning employer\u2019s unfair labour practices, or that he or she has presented other evidences to the relevant administrative agencies.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the possible consequences for the employer if a worker has suffered discrimination or harassment in the context of termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>If an employee is terminated in violation of the provisions outlined in Questions 1, 2, and 8, the termination will be held invalid. The available remedies for the employee are reinstatement and back-pay. Please refer to Question 9 for more information on the consequences of invalid terminations.<\/p>\n<p>For the corresponding violation in relation to the possible consequences below for the employer if an employee suffered discrimination or harassment, please see Question 12.<\/p>\n<p><strong>Under the LSA:<\/strong><\/p>\n<ol>\n<li>Administrative fine not exceeding KRW five million (approx. USD 3,400);<\/li>\n<li>Up to five years\u2019 imprisonment or a criminal fine not exceeding KRW fifty million (approx. USD 34,110);<\/li>\n<li>Up to five years\u2019 imprisonment or a criminal fine not exceeding KRW fifty million (approx. USD 34,110);<\/li>\n<li>\u00a0Up to two years\u2019 imprisonment or a criminal fine not exceeding KRW fifty million (approx. USD 13,644); and<\/li>\n<li>Administrative fine not exceeding KRW five million (approx. USD 3,400) for failure to investigate or take appropriate measures to protect the victim(s) or take disciplinary action or maintain confidentiality. However, employers can be subject to up to three years\u2019 imprisonment or a criminal fine not exceeding KRW thirty million (approx. USD 20,466) for taking disadvantageous measures (e.g., termination, discrimination, exclusion, disciplinary actions) against victims or those who reported the workplace sexual or general harassment.<\/li>\n<\/ol>\n<p><strong>Under the Equal Employment Opportunity and Work-Family Balance Assistance Act:<\/strong><\/p>\n<ol>\n<li>Up to five years\u2019 imprisonment or a criminal fine not exceeding KRW thirty million (approx. USD 20,466);<\/li>\n<li>Up to five years\u2019 imprisonment or a criminal fine not exceeding KRW thirty million (approx. USD 20,466);<\/li>\n<li>Regarding sexual harassment within the workplace, up to three years\u2019 imprisonment or a criminal fine not exceeding KRW 20 million (approx. USD 13,644);<\/li>\n<li>Regarding sexual harassment from clients, up to KRW five million (approx. USD 3,400) as an administrative fine;<\/li>\n<li>Up to three years\u2019 imprisonment or a criminal fine not exceeding KRW twenty million (approx. USD 13,644);<\/li>\n<li>Up to three years\u2019 imprisonment or a criminal fine not exceeding KRW twenty million (approx. USD 13,644); and<\/li>\n<li>Up to three years\u2019 imprisonment or a criminal fine not exceeding KRW twenty million (approx. USD 13,644).<\/li>\n<\/ol>\n<p><strong>Under the Act on the Prohibition of Discrimination against Persons with Disabilities and Remedy against Infringement of their Rights<\/strong><\/p>\n<p>Up to three years of imprisonment or a criminal fine not exceeding KRW thirty million (approx. USD 20,466).<\/p>\n<p><strong>Under the Act on the Prohibition of Age Discrimination in Employment and Elderly Employment Promotion<\/strong><\/p>\n<ol>\n<li>A criminal fine not exceeding KRW five million (approx. USD 3,400); and<\/li>\n<li>Up to three years of imprisonment or a criminal fine not exceeding KRW thirty million (approx. USD 20,466).<\/li>\n<\/ol>\n<p><strong>Under the Trade Union and Labor Relations Adjustment Act<\/strong><\/p>\n<p>Up to two years\u2019 imprisonment or a criminal fine not exceeding KRW twenty million (approx. USD 13,644).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are any categories of worker (for example, fixed-term workers or workers on family leave) entitled to specific protection, other than protection from discrimination or harassment, on the termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Fixed-term employee\u2019s length of employment cannot exceed two years. If it does, then the employee will be considered employee without a definite term (i.e., permanent employee). Please note, in deciding the employment terms and conditions, fixed-term employees are treated the same as regular, indefinite-term employees under Korean employment laws.<\/p>\n<p>Likewise, length of service by a temporary agency workers cannot exceed two years and if it does, the employer that engaged temporary agency workers has an obligation to directly employ temporary agency workers. The employer cannot accord discriminatory treatment to the temporary agency workers in comparison to the employees in the workplace that provides same or similar service.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are workers who have made disclosures in the public interest (whistleblowers) entitled to any special protection from termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, as stated in Question 12, an employer shall not terminate or treat an employee unfairly for reporting a violation of the employment and laws by the employer to the MOEL or a labour office inspector. Applicable penalties are up to two years\u2019 imprisonment or a criminal fine not exceeding KRW twenty million (approx. USD 13,644).<\/p>\n<p>In addition, under the Public Interest Whistleblower Protection Act, no person can take disadvantageous measures as defined in the Public Interest Whistleblower Protection Act, which includes termination, demotion, reduction in pay, restriction on promotion, reassignment of position and discrimination in compensation or bonus against a whistleblower. Violation can result in up to two years\u2019 imprisonment or a criminal fine not exceeding KRW twenty million (approx. USD 13,644).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In the event of financial difficulties, can an employer lawfully terminate an employee\u2019s contract of employment and offer re-engagement on new less favourable terms?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, an employer can terminate an employee for imminent managerial necessity. Termination for financial difficulties or imminent managerial necessity falls under the category of layoff terminations which requires stricter and additional requirements for lawful termination. Please refer to Question 2 for more information.<\/p>\n<p>At any time during an employee\u2019s employment, an employer can approach an employee to amend the existing working terms and conditions. In most cases, employers would not terminate an employee only to offer reengagement under new or less favourable terms. Instead, employers would approach employees for possible amendments to their existing terms and conditions before considering employment termination.<\/p>\n<p>In the event an employer terminates an employee and then re-engage the employee on less favourable terms, there is a risk that the termination may be viewed as a pressure tactic to force the employee to accept less favourable terms, which then could result in invalidation of the termination and re-instatement of the employment terms and conditions prior to the termination.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What, if any, risks are associated with the use of artificial intelligence in an employer\u2019s recruitment or termination decisions? Have any court or tribunal claims been brought regarding an employer\u2019s use of AI or automated decision-making in the termination process?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The use of artificial intelligence in the recruitment or termination has not been fully considered by the current legislations.<\/p>\n<p>The current laws do not explicitly restrict or prohibit the use of artificial intelligence in an employer\u2019s recruitment or termination decisions. However, even if the decision to recruit or terminate an employee is decided by artificial intelligence, the legality of the decision (result) will be reviewed with the same legal standard applicable to hiring or firing decisions done by a committee or a human being. For example, the courts will review whether a termination meets the procedural, substantive (just-cause), and the proportionality requirements, irrespective of whether the termination was decided by artificial intelligence.<\/p>\n<p>Please note under the Korean Personal Information Protection Act (PIPA) and the guidance thereunder, if a company makes a decision on recruitment solely using automated decision making system (including the system that uses artificial intelligence technology), then upon request of the data subject person, the company must have a human person handling the recruitment re-examine the appropriateness of the decision and provide an explanation to the subject person. In addition, under PIPA, generally speaking, if the decision that involves processing of personal information is made solely by the automated decision making system and the decision greatly impacts data subject person\u2019s rights and obligations, the data subject person can refuse to accept such decision.<\/p>\n<p>While the advancement of AI is accelerating, there have not been any cases associated with the use of AI or automated decision-making in the termination process, and it is not clear what, if any, ramification this will have on the termination process.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What financial compensation is required under law or custom to terminate the employment relationship? How is such compensation calculated?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under the LSA, an employer must provide at least thirty days\u2019 written notice of termination to the employee. Alternatively, an employer may provide thirty days\u2019 compensation instead of advance notice. Please see Question 5 for more details.<\/p>\n<p>In the case of an early retirement package or mutual separation offers, there are no statutory formulas. Instead, the amount offered is a matter of contract; provided that, if an employer policy or regulation (including any collective agreements) stipulates a formula, the employer must follow its policy, regulation, or collective agreement. Please see Question 19 for more information.<\/p>\n<p>Under Article 8 (1) of the Employee Retirement Benefit Guarantee Act, upon the termination of the employment relationship for any reason including mutual separation, an employee who has been employed for one year or more (and worked for 15 hours or more per week based on 4 week average) is entitled to a (statutory) minimum severance pay equal to not less than 30 days\u2019 \u2018average wage\u2019 per each year of service (and pro-rated in case the final year of employment is less than a full year). The average wage is calculated by dividing the total wages paid to the employee during the last 3 months of service by the number of days in the three months.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can an employer reach agreement with a worker on the termination of employment in which the employee validly waives his rights in return for a payment? If yes, in what form, should the agreement be documented?  Describe any limitations that apply, including in respect of non-disclosure or confidentiality clauses.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, such an agreement is referred to as a \u201cmutual separation agreement\u201d (or if part of a larger reduction-in-force initiative, an \u201cearly retirement package\u201d). In a mutual separation agreement, the employee agrees to resign in exchange for \u2013 most commonly \u2013 an ex-gratia payment from the employer. There are no statutory formulas. Instead, the amount offered is a matter of contract; provided that, if an employer policy or regulation (including any collective agreements) stipulate a formula, the employer must follow its policy, regulation, or collective agreement.<\/p>\n<p>In a mutual separation agreement, an employee may waive his right to further claims against the employer and may agree to post-termination covenants (e.g., non-compete, non-solicitation), and non-disparagement clauses. Further, the parties may draft in a non-disclosure or confidentiality clause as they deem necessary, and such clauses would be generally binding upon the parties. Please see Questions 20, 21, and 22.<\/p>\n<p>Mutual separation agreements are most commonly documented in writing; it is highly rare and unadvised for the terms to be agreed upon verbally or in a less definitive written medium such as an email.<\/p>\n<p>Further, while restrictive covenants such as non-competition and non-solicitation are, in principle, enforceable, the courts are requiring specific consideration in exchange for the restrictions as a de facto element. General renumeration such as the regular salary and other benefits are not readily recognized as the requisite consideration for enforceability.<\/p>\n<p>These mutual separation agreements must be voluntary in nature and agreements that waive protections given to employees that are considered mandatory such as employee\u2019s severance payment or the employee\u2019s right to bring a lawsuit may be held invalid.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is it possible to restrict a worker from working for competitors after the termination of employment? If yes, describe any relevant requirements or limitations.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, however, please note that although non-compete agreements are considered generally enforceable in Korea, there may be instances where the effect of non-compete agreement can be denied depending on the circumstances. When determining the enforceability of non-compete provisions, Korean courts will consider various factors including, but not limited to:<\/p>\n<ol>\n<li>Whether there exists a legitimate and protectable business interest;<\/li>\n<li>The circumstances of the employee\u2019s departure from the previous employer (e.g., termination, resignation);<\/li>\n<li>The durational and geographical scope of the restrictions;<\/li>\n<li>The employee\u2019s access to confidential information while with the previous employer;<\/li>\n<li>The employee\u2019s position, rank, and responsibilities; and<\/li>\n<li>Whether the employee received consideration in exchange for the non-compete provision.<\/li>\n<\/ol>\n<p>Based on such factors, if the court finds that an employee\u2019s constitutional freedom of employment would be unreasonably infringed or violated, the court can invalidate the non-compete provision entirely or in part concerning the durational and geographical scopes.<\/p>\n<p>Although there is no statutory limit on the recognized restrictive period for non-compete agreements, as a general proposition, restrictive periods that are longer than 12 months may be subject to a higher risk of challenge.<\/p>\n<p>Of the factors above, Factor 6 (i.e., consideration received for the restrictions) has become a de-facto requirement for enforceability. Courts consider variety of factors with compensation being one of the factors, and are, in general, highly reluctant to enforce non-compete or non-solicitation agreements unless the employee received payment in exchange for his\/her agreement to the restrictions. Please note the law does not set forth the amount of payment.<\/p>\n<p>Enforcing non-compete provision and other post-termination restrictive covenants may require significant resources in terms of time and money. It is highly advised to consult with local counsel before commencing such procedures.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is it possible to restrict a worker from soliciting customers or clients, or employees of the employer, after the termination of employment? If yes, describe any relevant requirements or limitations (including any payments that must be made to the worker for the restriction to be valid and enforceable).<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, it is possible to include a non-solicitation provision in the separation agreement that prohibits the employee from soliciting customers, clients or employees of the employer. However, similar to the non-compete provision, courts will consider, among other factors, the employer\u2019s interest related to non-solicitation protection, period and scope of non-solicitation, position of the employee prior to separation and the scope of the information of the company that he or she had access to, circumstances surrounding employee\u2019s separation and whether the employee received compensation. After considering these and other factors that court deems relevant, the court may invalidate or make adjustment to the non-solicitation protection if the agreement excessively restricts a person\u2019s freedom of employment. Please note, again, the law does not set forth the amount of payment that the employer must pay for including non-solicitation provision. However, failure to include payment will serve as a negative factor against the employer, especially where the non-solicitation agreement is broad in nature. Therefore, we recommend including a separate payment for non-solicitation agreement. In addition, we also recommend including specific details regarding the subject of non-solicitation, prohibited behaviour, period of prohibition and remedies in case there is a violation.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can an employer require a worker to keep information relating to the employer confidential after the termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, a post-termination non-disclosure agreement is enforceable in Korea. Employers should carefully define what constitutes \u201cconfidential information\u201d in any non-disclosure provision. Also, unlike non-compete or non-solicitation, non-disclosure agreements or provisions may be set for an indefinite period because non-disclosure obligations are \u2013 as a general proposition \u2013 not seen as infringing upon an individual\u2019s constitutional freedom of employment.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are employers obliged to provide references to new employers if these are requested?  If so, what information must the reference include? What duties apply to employers giving references?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, whenever an employer is requested by an \u201celigible\u201d former employee to issue a certificate of employment, specifying the term of employment, kind of work performed, positions taken, wages received, and other necessary information, the employer shall immediately prepare and deliver such certificate based on facts, even after the retirement of the employee. The certificate shall contain only the information that was requested by the employee. Failure to provide the certificate may result in an administrative fine not exceeding KRW five million (approx. USD 3,400). Please note that a character reference is interpreted to be not included in this employer obligation.<\/p>\n<p>A former employee is \u201celigible\u201d if the employee had worked for thirty days or longer and within three years of retirement\/separation from the employer.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What, in your opinion, are the most common difficulties faced by employers in your jurisdiction when terminating employment and how do you consider employers can mitigate these?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>We can identify two major difficulties when terminating employees in Korea:<\/p>\n<p>1.The most common difficulty is satisfying the just-cause requirement for termination, especially if the employer seeks to terminate an employee for poor performance or redundancy (i.e., elimination of a single or few positions), which is not \u2013 in and of itself \u2013 considered sufficient just-cause for termination under Korean law.<\/p>\n<p>When seeking to terminate an employee for poor performance, both evidence and time are required. As a general proposition, employers are required to demonstrate that efforts were duly undertaken to educate, train and guide an underperforming employee to provide opportunities (including adjustment of targets, reassignments, etc.) for improvement and that despite such efforts, the employee failed to improve. These efforts and the employee\u2019s failures should be evidenced from an objective standpoint (e.g., objective and regular evaluations and feedbacks). Therefore, termination for poor performance is highly difficult and may require up to 9 \u2013 12 months of evidence and employer efforts. But even then, the satisfaction of the just-cause requirement is not guaranteed. Many employers opt to use the mutual separation method as an alternative to termination.<\/p>\n<p>As redundancy (i.e., elimination of a single or few positions) is not \u2013 in and of itself \u2013 considered sufficient just-cause for termination under Korean law, employers also rely on the mutual separation method to separate from the employee; provided that, there are no other grounds for establishing just-cause.<\/p>\n<p>Note: The just-cause requirement applies only for employers with five employees or more.<\/p>\n<p>2. The second difficulty involves the protections around workplace harassment. Workplace harassment prevention laws were intended to protect employees and workers of third parties from hostile work environments and general harassment by supervisors and other employees. An employer is required to investigate any report of workplace harassment in addition to taking protective measures for the alleged victim and satisfying other statutory requirements. However, cases are becoming more frequent where employees weaponize the well-intended workplace harassment protection provisions. Specifically, when an employee believes that a company is threatening the employee\u2019s job security by initiating discussions about mutual separation, engaging in discussions about poor performance, initiating an investigation to review an employee\u2019s potential unlawful or acts of misconduct, or initiating disciplinary procedures, the impacted employee could file a workplace harassment claim to the employer, effectively attempting to suspend any procedures or measures initiated against the employee until the investigation is complete. This is because although proceeding with the investigation to review employee\u2019s potential misconduct or carrying out disciplinary procedure even after a claim for workplace harassment has been filed is not prohibited per se, it could potentially be viewed as a retaliatory measure and could result in criminal liability.<\/p>\n<p>Hence, employers often react highly cautiously and conservatively when faced with a workplace harassment claim. However, employers may consider taking a \u201cparallel approach\u201d where the employer may choose to continue its initial, lawful procedure while satisfying its obligations under the workplace harassment prevention provisions to investigate the matter. We highly recommend clients to seek legal counsel before proceeding.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are any legal changes planned that are likely to impact the way employers in your jurisdiction approach termination of employment? If so, please describe what impact you foresee from such changes and how employers can prepare for them?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>No, there is no major legal changes planned that would impact the way or standards that employers would approach termination of employment.<\/p>\n<p>Although not related to termination, please note there was a recent amendment to the Trade Union and Labor Relations Adjustment Act and the definition of employer expanded to include not just the employer that signed the employment contract, but also the party who exercises the actual and specific controls and decision regarding the employment conditions, which is aimed at including such party as the prime contractor. This amendment further strengthened the employees\u2019 rights.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\r\n<div class=\"word-count-hidden\" style=\"display:none;\">Estimated word count: <span class=\"word-count\">6090<\/span><\/div>\r\n\r\n\t\t\t<\/ol>\r\n\r\n<script type=\"text\/javascript\" src=\"\/wp-content\/themes\/twentyseventeen\/src\/jquery\/components\/filter-guides.js\" async><\/script><\/div>"}},"_links":{"self":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide\/135028","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide"}],"about":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/types\/comparative_guide"}],"wp:attachment":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/media?parent=135028"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}