I. Introduction
In order to equip the country to be more globally competitive, English proficiency is essential. To this end, the cheapest way to improve one’s English skills is to regularly attend English conversation classes taught by a native English instructor in Korea. The immigration data from the Department of Justice indicate that the number of native English instructors working in Korea has remained relatively constant at 20,000 in recent years, with this number expected to be maintained in the future. Native English teachers are highly educated with bachelors’ degrees or higher from their home countries, where English is their mother tongue. Accordingly, it is necessary to induce competent, qualified native English instructors to stay longer by strengthening their legal protections. As all native English instructors are foreigners and have fixed-term contracts, they are not well-protected by Korean labor laws. In this article, I would like to point out the problems they face due to the weakness of the legal protection granted to them.

II. Unfair Dismissal
1. Difficulties in getting reinstated in reality
Korea’s immigration law trumps labor law for Native English instructors because they entered Korea for employment. In cases where native English instructors are dismissed without justifiable cause, they can apply to the Labor Relations Commission for remedy. However, as native English instructors can stay only under the work-permission visa according to immigration law, they face many limitations in the course of seeking remedy. They may find their visa has expired or been cancelled while they are fighting unfair dismissal through the Labor Relations Commission. Even should the Commission order an employer to reinstate a native English instructor, they must go through the complicated process of getting a new E-2 visa (foreign language instructor visa). Many instructors do not wish to return to an employer who has mistreated them, so these cases often result in monetary settlement and an instructor who returns to their home countries.

2. No remedy possible for dismissals occurring two months before contract expiry
If a native English instructor is dismissed two months or less before the expiration of the contract, they cannot find remedy in reality. The Labor Relations Commission needs about 60 days from the time of receiving a claim for unfair dismissal, to hold a judgment hearing and make its decision. A claim for reinstatement or remedy will expire if a native English instructor’s contract expires during the remedy process. This period of time represents one of the blind spots in Korean labor law.

3. Non-fixed term contract impossible after renewal of the fixed-term contract for two years
Native English instructors remain fixed-term employees, even when they have worked in excess of two years at the same job. Korean employees, on the other hand, must become regular employees if their employer wishes to keep them, but this protection is not afforded to foreigners.

4. Limitations in application of orders to make monetary compensation
Monetary compensation may be requested by the native English instructor in lieu of reinstatement in an unfair dismissal dispute. In the event the Labor Relations Commission (LRC) rules in the instructor’s favor, the employer shall compensate the instructor instead of reinstating him or her. However, for fixed-term employees, this monetary compensation system can be useless in actual practice, as the employer can appeal the Commission’s decision with the National Labor Relations Commission. The contract period (and therefore, the employment visa) of the native English instructor may expire during this appeal process. In this case, the National Labor Relations Commission judges that the remedy for monetary compensation shall not be dealt with by the Labor Relations Commission, but by civil court, and the first decision by the LRC is canceled. Native English teachers find it almost impossible to pursue a monetary compensation lawsuit in civil court, due to the fact that they are not permitted to get another job as long as the lawsuit is ongoing.

5. Requesting a letter of release is regarded as agreeing to termination of employment
In cases where native English instructors find employment with another business during their original contract period, they need to receive a Letter of Release from the institute owner and submit it to the Immigration Office with an Application for Workplace Transfer. If an instructor has been dismissed, it is very difficult to get a new job without this Letter of Release due to the complicated process of having a new E-2 visa issued. This, plus the fact that the Letter of Release is required to continue staying in Korea, means the dismissed instructor usually requests a Letter of Release from the employer who dismissed them. The Labor Relations Commission and the court often view such requests for a Letter of Release as “agreed termination,” or “implied agreed termination.”

III. Wages and Working Hours
1. Unpaid wages
There are not many cases of intentionally delayed payment of wages, but when an institute deteriorates financially, wages are delayed. In these cases, the following steps can be taken:
① The native English instructor submits a petition for unpaid wages to the Labor Office;
② Should the institute continue to delay payment of wages, risking criminal charges, the native English instructor can present a Confirmation of Unpaid Wages, issued by the Labor Office, to the Legal Aid Corporation of the Ministry of Justice, after which the Corporation places the institute’s property into foreclosure and retrieves the unpaid wages;
③ Should the institute become virtually insolvent or bankrupt before wages are paid, a native English instructor can request insolvency payment through the Labor Office, in accordance with the Wage Claim Guarantee Act just as a Korean employee can. This will amount to wages for only the final three months of employment, and unpaid severance pay for the final three years of employment, within insolvency payment limits. The process of receiving unpaid wages is so complicated and takes so much time that native English teachers must often give up on receiving their unpaid wages.

2. Statutory severance pay
The employer shall pay employees who resign after serving one year or longer, 30 days’ average wages per each continuous service year, except for part-time employees whose average contractual working hours per week are fewer than 15 hours for four consecutive weeks. Severance pay is a system that other countries do not have, which is to be paid later according to the Korean wage structure. Employers of native English teachers (who are not accustomed to the severance pay system) have at times created contracts in an attempt to allow the employer to avoid paying severance pay, and in some cases, have terminated the employment contract just ahead of one year. Generally institute owners recognize their obligation to pay severance pay, but some employers still find ways to avoid paying it, which is in violation of the Labor Standards Act.

A. Cases where the employment contract has been renewed every 10 months
“A International Foreign School” in Seoul had employment contracts with its native English instructors for 10 month periods, excluding the summer vacation, in an attempt to evade their obligation to pay severance pay. Their native English instructors had continued working for them for four years on average, with their contracts renewed continuously unless their teaching skills were significantly inferior. Once they resigned from this school and did not receive the