Ⅰ. Concept

Recently workplace harassment within large corporations has entered the social spotlight. Every day it seems that executives are reported by the media for abusive language, assault, or inhumane treatment of their employees, but the acts revealed to the public are but the tip of the iceberg. According to a survey by the Korea Labor Institute, 66.3% of respondents said that they had experienced direct harassment at their workplace in the past five years. Also, according to a Human Rights Commission’s survey, 73.3% of respondents experienced workplace harassment over the past year. The average number of harassment was 10.0 cases, the experience of personal harassment was 39.0%, and the experience of collective harassment was 5.6%. These workplace harassments have resulted in negative reactions such as consideration of resignation(66.9%), less confidence in the company and its senior officials(64.9%), a decline in work performance and concentration(64.9%), and a reluctance to relate with peers(33.3%).
The damage due to workplace harassment continues to grow and so the Workplace Harassment Prevention Law was enacted because of public demand for improvement. It is meaningful that it was introduced into the Labor Standards Act. The details are described below.


Ⅱ. The Workplace Harassment Prevention Law

1. Details

(1) The employer’s obligation to prohibit workplace harassment
Article 76-2(Prohibition against Workplace Harassment) The employer or an employee shall not cause physical or mental suffering or deteriorate the working environment, exceeding the appropriate level of bearable limits, by taking advantage of his or her position or relationship in the workplace(hereinafter referred to as “workplace harassment”).

(2) Obligations of the employer in the event of workplace harassment


Article 76-3 (Measures in case of bullying in the workplace)
① Any employee who has been informed or aware of the occurrence of workplace harassment can report it to the employer.
② The employer shall conduct an investigation to confirm the facts without delay if the employer acknowledges the occurrence of harassment in the workplace or accepts a notification under Paragraph 1 above.
③ The employer shall, when necessary for the protection of workers who have allegedly suffered damage related to workplace harassment within the period of investigation pursuant to paragraph 2 (hereinafter referred to as “alleged victims”), implement appropriate measures such as changing the place of work, granting paid leave, etc. In such cases, the employer shall not take such measures against the desires of the victim.
④ The employer shall take appropriate action such as changing the place of work, transferring the job, granting paid leave etc. when requested by the alleged victim, if the fact of workplace harassment is confirmed as a result of the investigation pursuant to Paragraph 2 above.
⑤ The employer shall take all necessary measures such as disciplinary action, changing the work place, etc. without delay when it is confirmed that workplace harassment has occurred. In this case, the employer shall consider the opinion of the victim about the proposed measures prior to taking any action.
⑥ The employer shall not dismiss or take any other unfavorable steps against the employee who reported the occurrence of harassment in the workplace or the alleged victim.


(3) Addition of required items listed in the rules of employment
Article 93(Preparation and Filing of rules of employment) 11. Matters concerning prevention of and measures to handle an occurrence of workplace harassment

(4) Prohibition against disadvantaging a complainant or (alleged) victim
Article 109(Penalty) The employer shall be punished by imprisonment for not more than three years or a fine of not more than KRW 30 million if found in violation of Paragraph 6 of Articles 76-3 of this Act.

2. Amendment to the Industrial Accident Compensation Insurance Act

Article 37(1) of the IACI Act, which lists reasons for acceptance as occupational disease, has added “illness caused by work-related mental stress, such as workplace harassment and abuse of the worker pursuant to Article 76-2 of the Labor Standards Act.”

3. Amendments to the Occupational Safety and Health Act

A new item has been added to Article 4 of the OSH Act(Government obligations): “10. Establishment, guidance and support of measures to prevent workplace harassment pursuant to Article 76-2 of the Labor Standards Act.”

Ⅲ. Workplace Harassment

1. Definition of “workplace harassment”

It is meaningful that the definition of workplace harassment clearly defines the obligations of the related employer and the standard of related harassment incidents. Until this concept was established, labor law set no legal obligation or liability for workplace harassment. Therefore, under the existing legal system, the measures that a victim of harassment in the workplace could take against an employer included ① submitting a claim for damages based on liability of the perpetrator of the illegal acts(Article 750 of the Civil Act); ② begin a suit for damages(violation of the obligation of safety considerations by labor contract)(Article 390 of the Civil Act), or ③ submitting a complaint under Article 30(Human Rights Violation) of the National Human Rights Commission Act. In general, it is very meaningful that the Labor Standards Act has stipulated a definition of workplace harassment in order to strengthen the obligations of employers and protect workers with ways to receive remedy.

2. Establishment of the employer’s duty for action in case of workplace harassment

If workplace harassment occurs, the victim or a third party can notify the employer. An employer who has been informed of the occurrence of workplace harassment must conduct an investigation to confirm the facts. In the course of this investigation, measures should be taken to protect the alleged victim and, if the investigation confirms workplace harassment, disciplinary action should be taken without delay.
In the event of such workplace harassment, the rules for reporting and the processing procedures in the workplace apply equally to the sexual harassment remedy procedures under Article 14 of the Equal Employment Act. Nevertheless, the Equal Employment Act enforces a fine of up to KRW 10 million if a company does not investigate and take appropriate measures when sexual harassment allegedly occurs in the workplace, but there is no similar penalty clause in the Workplace Harassment Prohibition Law. In addition, even if the employer engages in sexual harassment in the workplace, there is a penalty in the Equal Employment Act, but there is no fine in the amendment bill of the Labor Standards Law prohibiting workplace harassment if the employer becomes a perpetrator. Provided, in the same way as the Equal Employment Act, if the employer gives unfavorable treatment to employees and(alleged) victims who have reported workplace harassment, the employer can be punished by imprisonment for up to three years or a fine of up to KRW 30 million.

3. An addition of “workplace harassment” in the required items in the rules of employment

An employer who routinely employs 10 or more workers must fill out the 12 required items in the rules of employment and report them to the Minister of Employment and Labor(Article 93 of the LSA). Here is the required item added in relation to workplace harassment: “11. Matters concerning prevention and measures in case of occurrence of workplace harassment.” In other words, it is stipulated in the rules of employment that the company has implemented measures related to workplace harassment.

4. Penalties applicable for unfavorable treatment by an employer

It is regulated as the employer’s duty, in the self-governing rules, that the employer should explore preventive measures against workplace harassment and take appropriate measures. However, if(alleged) victims are disadvantaged, the employer should and can be severely punished, similar to the Equal Employment Act. Specifically, Article 110 of the Labor Standards Act stipulates “imprisonment for up to three years or a fine of not more than KRW 30 million in violation of Article 76-3(Paragraph 6) of this Act.”

5. Amendment to the Industrial Accident Compensation Insurance Act

The current Article 37(1) of the IACI Act did not recognize occupational accidents caused by workplace harassment, but the revised law does recognize an occupational accident due to “illness caused by work-related mental stress such as workplace harassment,” meaning this article will provide legal basis for workplace harassment and occupational accidents. Diseases caused by workplace harassment were difficult to have recognized as a work-related injury by the Korea Workers’ Welfare Corporation, and were accepted exceptionally only after complicated legal disputes. However, with the revised law, the Welfare Corporation has opened the way for victims to be recognized more quickly in the first work-related accident assessment stage.

6. Amendments to the Occupational Safety and Health Act

Workplace harassment has an adverse effect on the mental and physical health of workers, undermining their opportunity to work in a healthy environment. Therefore, the amendment to Article 4 of the OSH Act, to prevent illness caused by workplace harassment, imposes upon the government an obligation to act. In this regard, the Ministry of Employment and Labor has prepared “A Practical Manual for the Prevention of Workplace Harassment and Countermeasures Against It,” which will be distributed to all companies. Unfortunately, this obligation to prevent workplace harassment is defined as an obligation of the state rather than a direct obligation of the employer, so that the employer is not responsible for violations of the OSH Act.

Ⅳ. Effect and Limitations of the Workplace Harassment Prevention Law

1. Effect of the Workplace Harassment Prevention Law

It is not easy for ordinary workers to take legal action against a workplace for harassment because such matters take a considerable amount of time and money. However, the amendment to the Labor Standards Act clarifies the concept of workplace harassment, and in particular the employer’s obligation to prohibit workplace harassment, along with the obligation to implement relief procedures that will enable victims to receive protection and relief from workplace harassment more quickly.

2. Limitations of the Workplace Harassment Prevention Law

Although this law will contribute greatly to the improvement of the human rights of workers, there are some shortcomings.
First, there are no provisions for legal sanction against an employer for workplace harassment. New amendments to the workplace harassment law do not specify penalties against the company or penalties for the offender him/herself. In general, as workplace harassment is often the result of a high-ranking official becoming the perpetrator in a power relationship, this revision of the Labor Standards Act is insufficient.
Second, there are no legal sanctions if an employer does not to take reasonable action when a complaint of workplace harassment occurs in the workplace. The revised bill stipulates that in the event of harassment within the workplace, the Act on Equal Employment is the same as the obligation to implement measures related to the occurrence of sexual harassment in the workplace. However, in the case of sexual harassment in the workplace, the employer will be punished if he/she does not take reasonable measures. As the amendment to the Labor Standards Act does not require the employer to assume legal responsibility for undertaking any necessary investigation or other reasonable action in case of an occurrence of workplace harassment, it is limited in its protection of workers.

Ⅴ. Conclusion
Even if there are many deficiencies, it is meaningful that the introduction of the Workplace Harassment Prevention Law stipulates the duty of the employer to prevent workplace harassment, whether within the company or between workers. Although there are no direct penalties for the employer, we expect that this new law will contribute to creating a fair and desirable workplace culture.