1. Concept

"If an employer has received permission from the Minister of Labor, some rules of the Labor Standards Act concerning working hours, recess, and holidays will not apply to surveillance or intermittent employees, and the employer will not be obligated to pay overtime allowances and holiday work allowances".¹⁸¹⁾
This means, when paying fixed monthly wages to surveillance or intermittent employees, the employer does not have to pay additional overtime allowance or holiday work allowance for overtime or holiday work. The employer can even pay lower than minimum wage (as low as 80 percent of minimum wage). Here, "surveillance or intermittent employees" means those employees whose jobs require a relatively lower intensity of labor and cause less physical fatigue and mental tension than others. Although some jobs share similar characteristics to surveillance or intermittent work, identical rules to normal employees concerning working hours shall continue to apply to those jobs if the employer has not applied to have them recognized as exceptions by the Minister of Labor, or if the employer's application for exception was rejected. In relation to this matter, the following looks into the necessity for exceptions to the Labor Standards Act to be made for certain jobs, requirements for approval, and cases that have and have not been approved.


2. Times When Approval for 'Exceptions to Application' is Necessary

While reviewing labor cases that deal with surveillance or intermittent work, it is very important, and sometimes essential, for employers to receive approval to make exceptions to the Labor Standards Act for surveillance or intermittent employees.

(1) Exclusive driver (chauffeur) for a company executive:
In the morning, a chauffeur employed by Company "A" picks up the executive assigned to him, drives him to the office, and then finishes the day by taking him home in the evening. In cases where the director provides special receptions for corporate clients, the driver has to leave the workplace in the middle of night. In some cases, he may have to drive the executive to golf courses or other places on weekends or holidays. In situations like this, the time involved in picking up the executive before work, time spent waiting in the evening, and time spent waiting during dinners or golf meetings for clients shall be calculated as working hours and paid in overtime allowance for the extra working hours. If the inclusive wage system is applied, the maximum working hours per week (including overtime) is 52 hours, so working hours exceeding 52 hours per week shall be paid an additional overtime allowance. Since inclusive wages only include the legally allowed extended working hours (12 hours per week), the company would have to pay extra overtime wages for hours worked above 52, to cover the extended working hours and holiday work. In order to deal with this situation more appropriately, the employer should submit an application to the Minister of Labor for exception to be made to the statutory rules regulating working hours, recess, and holiday work for surveillance and intermittent employees. Once approval is received, the employer does not have to calculate working hours for surveillance and intermittent employees concerning extended working hours or holiday work.

(2)Employees responsible for maintenance of air-conditioning, heating equipment, and electricity:
Company "B" is a manufacturer that produces its products by operating three shifts in its plant. Employees responsible for maintaining air-conditioning, heating equipment, and electricity work 12 hours per day in two shifts. Their annual wages at entry level were about 30 million won or less, but the actual wages they received amounted to not less than 50 million won after accumulation of overtime and weekly holiday work allowances, etc. Despite having long working hours, the intensity of work is lower than other employees, and the number of hours they actually have to perform some service is less than half of their total shift hours. In order to maintain an acceptable wage level under such long working hours, the company has to receive permission from the Ministry of Labor for exception to be made to the statutory rules regulating working hours, recess, and holiday work for such employees. If permission is given, the company is free of legal obligations to pay extra allowances for employees on duty beyond the weekly maximum extended working hours, or holiday work.


3. Requirements for 'Exceptions to Application' to be Approved

(1) Provision of 'exceptions to application'

(2) Approval procedures


(3) Criteria for approval


(4) Cases Approved and Rejected
1) Approved cases
① Those working on weekends or at night to maintain a building and its facilities are considered intermittent employees.¹⁸²⁾
② Security guards at apartment buildings and those working in an electrical or boiler room are considered to be engaged in surveillance or intermittent work and LSA rules concerning working hours, recess, and holidays shall not be applicable.¹⁸³⁾
③ A guard supervisor who is in charge of general management of security resources is considered to be engaged in surveillance work.¹⁸⁴⁾
④ A private policeman whose job requires a relatively lower intensity of labor than others in his/her field is considered to be engaged in surveillance work.¹⁸⁵⁾
2) Rejected cases
① A watchman at a railroad crossing (flagman) is not a surveillance or intermittent employee.
A certain watchman at a railroad crossing controls the trains passing 42 to 50 times per day, and also helps prevent accidents with pedestrians or passing cars. In reviewing the frequency of this watchman's checks and the constant attention needed to prevent accidents, this job cannot easily be classified as surveillance or intermittent work.¹⁸⁶⁾
② Janitors at court are not intermittent employees.
Janitors at court start work early in the morning and continue according to a certain work schedule, excluding designated recess hours. Some individuals have to work even during recess hours. They are not classified as intermittent employees, because they do not provide work intermittently.¹⁸⁷⁾


4. Driver of Director Paid Less than Statutory Allowances

(1) Disputes
The exclusive driver of a director (hereinafter referred to as the Employee) of Company A (hereinafter referred to as the Company) resigned after serving approximately 6 six years, and filed a petition to the Ministry of Employment & Labor for severance pay owed him, as well as statutory allowances for overtime, night, and holiday work, which were significantly different than what he received from the Company.
The Employee was hired by the Company on September 29, 2005 as a temporary employee and driver of the director's car. He renewed his employment contract every year for four years, after which the Company made him a dispatched employee of another company due to the limitations on continued employment of fixed-term employees, and had him continue doing the same duties. The Employee resigned on August 13, 2011, after working two additional years. The reason the Employee filed the petition is because the Company just paid a fixed allowance for overtime exceeding the fixed overtime and holiday work. These fixed allowances were much lower than the allowances calculated by the Labor Standards Act, and the same situation existed for his severance pay.

(2) Resolutions
① Overtime and holiday work allowances for an intermittent worker
Generally, drivers of directors have long working hours, with the majority of these hours spent waiting, so it is not really fair to co

For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com

• • 
  • 
• 
• • 
  •