Ⅰ. Recess Periods

The purpose of a recess is to restore worker energy and reduce the boredom caused by continual work, thereby enabling them to continue to work feeling refreshed and with a willingness to work. A ‘recess period’ is the period of time during which a worker is free to rest without being directed or supervised by an employer.
The Labor Standards Act states “Working hours per week shall not exceed forty hours excluding recess hours. Working hours per day shall not exceed eight hours excluding recess hours. In calculating working hours, waiting hours the worker spends while under the employer’s direction and supervision for work shall be regarded as working hours” (Article 50). The recess period in the Labor Standards Act is excluded from working time, but time waiting for work is determined to be working time, not a recess period. Although the relationship between working time and recess period is clear, there is a vague distinction between ‘waiting time’ and ‘recess period’. In designating working hours, it is possible to secure optimal working hours even within statutory working hours if the proper recess period is used in consideration of the characteristics of the work. In order to design a suitable working time system, the concept of recess periods, and the criteria for distinguishing between ‘waiting time’ and ‘recess period’ is explained, along with examples of some working time systems using relevant recess periods.

1. The Concept of Recess Period and Practical Use
According to the Labor Standards Act, “An employer shall allow a recess period of 30 minutes or more for every 4 working hours and at least 1 hour for every 8 working hours during working hours” (Article 54). “Any person who violates the provision of ‘recess period’ shall be punished by imprisonment of up to two years or by a fine not exceeding 20 million won” (Article 110). “Working hours per week shall not exceed 40 hours excluding recess hours, and working hours per day shall not exceed 8 hours excluding recess hours, and waiting hours that the worker spends while under the employer’s direction and supervision for work shall be regarded as working hours” (Article 50).

(1) Free Use of Recess Periods
    ‘Recess period’ means time during which a worker is free to use away from the supervision and command of an employer during working hours. Here, the term ’working hours’ refers to the time when a worker provides work in a labor contract under the direction and supervision of an employer. Even if a worker is not actively working (i.e. waiting time, rest time, sleeping time, etc.), if it is a period of time when that free use is not guaranteed to the worker and is actually time under the control and supervision of an employer, this time is included in working hours.
A recess period is part of the working hours from the start to the end of work, so even during a recess period it is unavoidable that a worker may still be subject to a certain level of restriction, such as the command and supervision of an employer to continue to carry out work. In other words, workers can be given free breaks, but at the same time there may be some restricted recess periods, depending on the nature of the work, when it is necessary to maintain continuity of work and efficiently respond to emergency situations. In this case, if workers are free to use the recess period beyond the command and supervision of the employer, even though they are restricted within the workplace or are not allowed to leave the workplace during the break without permission, these limitations, which may be required in order to meet objective criteria recognized in advance, can be accepted as a reasonable limitation as to where and how breaks are to be used.

(2) Scope of Recess Periods and their Use
1) Principle: Article 54 (1) of the Labor Standards Act stipulates that employers shall provide a recess period of 30 minutes or more for every 4 hours of work, or 1 hour or more for every 8 hours of work. This is the minimum standard for recess periods that employers must provide for workers who work continuously for specific periods of time. Even if the recess period is provided and given in divided portions distinctive from working hours, as long as such recess periods are reasonable in view of the nature of the work and the working conditions, this cannot be regarded as a violation of the recess regulation.
2) Working hours of less than 8 hours: Employers shall provide 30 minutes or more of recess period during the working hours to workers whose working time is more than 4 hours and less than 8 hours. However, since this is the lowest standard, it is not a problem to provide more recess time.
3) Divided recess periods: The Labor Standards Act does not provide any provision for dividing a recess period into 10 minutes for every hour or 20 minutes for every two hours. A breakdown of subdivided hours may not be admitted, as the purpose of a recess period is to provide rehabilitation from fatigue, promotion of work efficiency, prevention of work accidents, eating time and to meet other socio-cultural requirements.
4) Working hours exceeding 8 hours: For overtime work of 8 hours or more per day, a recess period of 30 minutes or more for 4 hours of overtime and 1 hour or more for 8 hours or more shall be provided pursuant to Article 54 of the Labor Standards Act.

2. Classification of Waiting Time and Recess Period
(1) Judgment Standard
1) Working time and recess period
  ‘Working time’ refers to the time during which an employee provides work under the direction and supervision of an employer. Any waiting time is under the direction and supervision of the employer, and so shall be regarded as working time (Article 53 (3) of the LSA). On the other hand, ‘recess period’ refers to the time which a worker is free to use away from the command and supervision of an employer during working hours.

2) Waiting time and recess period
Both ‘waiting time’ and ‘recess period’ are common, in terms of occurring during working hours. The difference is that ‘waiting time’ is the preparation time before engaging in work as soon as the employer instructs and is therefore under the direction and supervision of the employer. ‘Recess period’ on the other hand, is time which workers are free to use separate from the direction and supervision of an employer. Therefore, the distinction between the two is determined according to whether the worker can freely use the time available. If the worker can clearly distinguish the recess period before starting work, and can freely use it with no direction or supervision by the employer, it must be regarded as a recess period, but if it is not known when there will be a work-related instruction from the employer while the worker is waiting, the time cannot be considered a recess period, but as working time.

(2) Related Cases
1) Drivers for transportation companies
 When workers of transportation companies, such as tour bus drivers, go to work and wait without knowing when they will be requested to work for the employer, such waiting time is not considered a recess period. However if, due to the nature of the work, it is not possible to uniformly set a certain recess period in advance, if the dispatch time of the day is clearly defined so that the distinction between the dispatch time (vehicle operation time) and waiting time is clear before work or on the day of work, and if the worker knows the waiting time in advance and if such waiting time is available freely beyond the direction and supervision of the employer, this is a recess period.

2) Apartment guards
In one case, apartment guards worked 24 hours from 7 am to 7 am the next day, and then rested. Of the 24 hours of work, the recess period consisted of 6 hours, and was divided into 1 hour for lunch, 1 hour for dinner, and 4 hours for night break (from midnight to 4 am). They were required to respond immediately if something urgent happened, even if it occurred during the night recess period. Although guards were wearing their work uniforms and took a nap during the night recess period, they were ready to react immediately in case of an emergency, and therefore such night rest periods should be regarded as working time.

3) Goshiwon (long-stay inn) receptionists
Goshiwon receptionists do not have predetermined times set aside for recess periods. As visitors or new tenants do not have a fixed arrival time, the receptionists must remain in place without leaving the Goshiwon house. The owner provides the necessary work instructions without special time constraints, and receptionists must also fulfill unscheduled instructions. Although the receptionists did not have any special work to do, and although they took long breaks or studied during many of the waiting hours, such time is considered to be a waiting time for work, not a recess period completely free from direction and supervision.

4) Postal vehicle drivers
  Drivers working in the postal logistic service have often taken breaks (such as eating or sleeping) at work, while working every other day. However, these breaks were taken during gaps in time while waiting to provide labor between the time of going to work and leaving work at a specific time. In other words, such periods were not provided freely away from the employer’s direction and supervision.

5) Nursing assistants
The labor contract of nursing assistants who worked a three-shift schedule specified a four-hour rest period during the night shift and the availability of a night-time sleeping room. However, in reality they often could not sleep there due to emergency calls from patients at the nursing hospital where they worked. Such periods shall be regarded as waiting hours for work.

3. Recess Periods and Related Cases
(1) Recess Periods in Hotel Restaurants
 In many restaurants, there are times when things are not busy, such as between breakfast and lunch and between lunch and dinner, so the business closes for two to three hours per day. Workers who are preparing for their work are recognized as working, but other workers are allowed to use this time freely to go out or rest. In response to this, the Ministry of Employment and Labor presented this opinion: Article 54 of the Labor Standards Act only specifies the minimum standard of a recess period, but there is no regulation on the longest time. Therefore long recess periods (2-3 hours) exceeding statutory recess periods are acceptable, but unlimited long intervals during working hours are against the original intent of the recess system. In order to view such long breaks as a recess period under the Labor Standards Act, there must be objective reasons that can be generally recognized as necessary and socially valid in view of the nature of the work or the working conditions of the workplace. Such recess period should be decided in advance by collective agreement, employment rules, labor contract, etc., so that employers cannot change or extend it arbitrarily, and workers should be guaranteed to be able to use it free from the provision of labor.

(2) Long Recess Periods at Hotels
A break time system refers to a working hour system that allows workers to rest for a time period longer than the stipulated time in the law through the use of time when the work load is significantly less or non-existent (For hotels, a break time is usually used between 2 pm and 5 pm). It is difficult to say if it is illegal for an employer to enforce a break time system for workers because the Labor Standards Act specifies only the minimum standard for a recess period with no maximum regulated limits.

(3) Long Recess Periods for Construction Workers in the Middle East
In the Middle East, it is objectively recognized that workers cannot work outside on construction sites where the temperature rises rapidly during the day. Instead, they work from 6 am to 10 am, take recess time from 10 am to 4 pm, and then work again from 4 pm to 8 pm, and this is reflected in collective agreements, employment rules or labor contracts. During the recess period, workers are completely free from work-related activities. In such cases, even though the recess period is long, such long intervals between working hours can be recognized as recess periods.

4. Opinion
Whether a break or waiting time set out in a labor contract falls within ‘working hours’ or ‘recess period’ cannot be judged exclusively according to a particular kind of business or type of work. It should be judged based upon considerations such as (i) the terms of the employment contract, the rules of employment, or collective agreement applicable to the workplace, (ii) the work provided by the employee and the specific type of work at the workplace, (iii) the employer's control and supervision of employees during recess hours, (iv) whether there is a freely-available resting place, and (v) other circumstances such as whether or not the worker's actual rest can be interrupted or whether there are situations which allow the employer to direct and supervise workers during recess hours.

Ⅱ. Holidays

1. Statutory Holidays



(1) Weekly Holidays
Employers shall grant a weekly holiday with pay at least once a week on average, provided that the employees concerned have worked all of the contractual working days (as determined in the rules of employment, etc.) for the preceding week. It is advisable that weekly holidays, which are not necessarily Sundays, should be stated in the rules of employment or other forms of company rules. Once a weekly holiday is fixed on a specific day (for example, Sunday), it is possible that an employee who was absent from work on a working day might use the weekly holiday without pay. An employee who has worked on a weekly holiday shall be paid an additional 50% of the normal wage for the hours worked (Article 56 of the LSA).
The interval between a weekly off-day and the following weekly off-day shall ideally be within 7 days. However, Article 55 shall not apply to short-term employees whose weekly average contractual hours for a 4-week period are fewer than 15.

1) Inclusion or non-inclusion of paid weekly holiday
If an employer pays employees according to a monthly wage system, the monthly wage shall be considered to include a paid weekly allowance, barring exceptional situations. If the employee receives fixed allowances along with basic hourly wages every month in a monthly wage system, such fixed allowances shall be interpreted to have similar characteristics as wages for paid weekly holiday allowance.

2) The weekly holiday does not normally apply to daily workers, but if a daily worker works for six consecutive days, a paid weekly holiday shall be provided.
Weekly holiday allowance under the Labor Standards Act shall be given to workers who fulfill their weekly contractual working hours. However, in principle, the weekly holiday shall not be given to daily workers because it is not possible to calculate weekly contractual working hours for daily workers, as they engage in daily employment contracts.
The purpose for providing a weekly holiday is to reduce the accumulated fatigue on workers after one week’s work, thereby helping to protect their health and to provide time to participate in social and cultural activities. If a daily worker works for 6 consecutive days per week without absence, actual working days (and not contractual working days) shall be applied and weekly holiday shall be granted. The employer shall pay weekly holiday allowance separately from wages for daily workers, unless the affected worker agrees to receive the weekly holiday allowance in advance, with their daily wages.

(2) Labor Day
Labor Day is officially May 1st by establishment of the Labor Day Act (March 9, 1994). This day is counted as a paid holiday according to the Labor Standards Act.

(3) Public holidays
Public holidays, according to Act on Public Holidays include: Independence Movement Day, National Liberation Day, National Foundation Day, Hangul Proclamation Day, New Year's Day (Jan. 1); Lunar New Year's Day (Dec. 31~Jan. 2 in the lunar calendar), Thanksgiving Day (Aug. 14~16 in the lunar calendar); Buddha's Birthday (Apr. 8 in the lunar calendar), Christmas Day (Dec. 25), Children's Day (May 5), Memorial Day (June 6), and Election Day (designed for election of new officials in accordance with the Public Official Election Act), and other particular days specified by the Government. Where the statutory holiday overlaps with Saturday, Sunday or another statutory holiday, the first working day following the statutory holiday shall be an alternative holiday. Provided, 11 holidays out of 15 are applied, but 4 holidays are excluded (January 1, Memorial Day, Buddha’s Birthday, and Christmas Day).

(4) Holiday Work
Article 56 of the LSA (Extended, Night or Holiday Work)
① Employers shall, in addition to the ordinary wages, pay employees at least 50/100 thereof for extended work (referring to the work during the hours extended pursuant to Articles 53 and 59 and to the proviso to Article 69).
② Notwithstanding paragraph ① an employer shall, in addition to the ordinary wages, pay employees who perform work on a holiday an amount the same as or more than the following:  
1. Holiday work for up to eight hours: 50/100 of ordinary wages;
2. Holiday work exceeding eight hours: 100/100 of ordinary wages.

1) Additional allowance
An additional allowance is paid for work provided during paid or unpaid holidays. In cases where extended work and holiday work overlap, allowances shall be paid in a combined sum. For the two-shift every-other-day work system, the off-day is differentiated from a holiday without work duty, thus an additional allowance shall not be paid even if the employee works on the off-day.

2) Prior substitution of holiday
Prior substitution of holiday signifies a system in which the employee works on a designated off-day and instead takes another day off from work, through prior arrangement of the parties concerned in the collective agreement or rules of employment. In this case, the original holiday becomes a regular working day. Consequently, neither a holiday allowance nor an additional paid holiday allowance shall be provided.

3) Labor Ministry Guidelines and judicial rulings
① For work on paid holidays, the rate of payment shall be 250 percent: 100 percent for paid holiday, 100 percent for actual work, and 50 percent as an additional allowance
② Weekly holiday and monthly and annual paid leave shall be calculated according to the attendance rate for the total number of days after omitting the period of a justified labor strike.
③ Weekly holidays and monthly and annual paid leave are calculated according to the attendance rate of working days excluding the period of justified labor strikes. Those days of no work due to unjustified labor strike shall be treated as absences.
④ The act of substituting leave with allowances promptly after monthly and annual leave was granted is forfeiting the employee from use of leave.
⑤ Whether the employee maintains perfect attendance or an 80 percent attendance is determined from the first day he/she began working for the company; but the attendance rate can be calculated from Jan. 1 of each year according to the collective agreement or rules of employment.
⑥ When extended work and night work overlap, 50 percent or more of ordinary wage shall be paid respectively.

2. Contractual Holidays
An important question every company needs to answer is whether it is required to provide paid off-days on public holidays in cases where an employee has been absent due to sickness caused by non-occupational activities. In short, if the public holidays are statutory holidays, the answer is Yes. In some cases, it is left to the company's discretion, or the requirements of the collective agreement or rules of employment. That is, in cases where these days are stipulated as paid off-days according to labor law, they become statutory holidays and statutory leaves. However, if they are not so stipulated, whether to pay or not is the company's decision, upon which they would be considered contractual holidays and contractual leaves. Only Labor Day, the weekly holiday and public holidays are legally considered statutory holidays. All other holidays are contractual holidays approved by the company. The following examines in more detail and provides some examples of application.


(1) Concept
Unlike statutory holidays, contractual holidays must be stipulated in the rules of employment or collective agreement in order to be legally recognized as paid or unpaid holidays. Statutory holidays shall be granted on particular dates and if work is done on those days, the company shall pay an additional holiday work allowance. Statutory holidays consist of a weekly holiday (Article 55 of the LSA: An employer shall allow a worker on the average one or more paid holidays per week) and Labor Day (Act Concerning Establishment of Labor Day: May 1st shall be proclaimed as Labor Day and is a paid holiday as determined by the National Labor Relations Commission.) However, contractual holidays are determined exclusively by the employer regarding particular dates and whether the holidays are paid or unpaid. If an employee works on a holiday stipulated as paid, the company shall pay an additional overtime allowance.

(2) Types of Contractual Holidays
Corporate holidays refer to paid off-days, such as Company Foundation Day, Labor Union Day, etc., that the company has designated in the collective agreement and the rules of employment.
(3) Relationship between Labor Law and Contractual Holidays
In cases where contractual holidays are settled as paid off-days, employees are exempted from providing labor. If employees have to work on contractual holidays like paid public holidays, they are entitled to paid wages (100%), which are already included in monthly wages, and additional holiday work allowance (150%) (Article 56 of the LSA: Additional Allowances).

Ⅲ. Leave

1. Annual Paid Leave
Annual paid leave shall be granted to employees who have continuously served for one year or longer. This is designed to provide leave to those who have served their contractual working hours over a long duration, to allow recovery from fatigue for extended work and rejuvenation of mind and body.



Employers shall grant 15 days of annual leave with pay to employees who have recorded workplace attendance of 80% or higher. Employers shall grant 1 holiday with pay per month of full attendance to their employees who have worked less than 1 year. The days an employee is absent from work due to an occupational accident, pre- and post-natal leave or childcare leave, shall be treated as days worked.
For employees who have worked 3 years or longer, the employer shall grant an additional 1 day in paid holiday for every 2 years following the first year, with the number of additional holidays limited to 25. Employers shall grant their employees annual leave on the day(s) that the employees wish to use his/her annual leave. However, if the employer believes that allowing the use of annual leave on the desired day(s) would do great harm to his/her business, he/she may reschedule the timing of annual leave. Employers may have their employees take a day off on a particular working day in lieu of an annual leave day with pay, as long as he/she and the employee representative have reached a written agreement to do so.
Given that annual leave days may be saved for a year and can be split for use on several occasions, it is advisable that a ledger of leave days saved be recorded and maintained for each individual employee.




(1) Rights Related to Annual Paid Leave
① Right to request annual paid leave
Annual paid leave is designed to maintain an efficient labor force and provide a balanced life through the spiritual and physical rest of employees who attended work fully during the preceding year. Accordingly, employers shall grant 15 days of paid leave to employees who have a workplace attendance rate of 80 percent or higher over the preceding year (Article 60 (1) of the Labor Standards Act). Employees are granted the right to annual paid leave according to their workplace attendance rate for the preceding year.

② Right to request unused annual paid leave allowance
The right to request unused annual paid leave allowance is the right to ask for an allowance as compensation for the unused annual paid leave days if the employee provided labor service without using the annual paid leave accrued as remuneration for work for the previous year. This right occurs after the right to request annual paid leave expires. There is also the right to ask for an allowance as compensation for unused annual paid leave for the number of unused annual paid leave days due to termination of an employment contract, for example, upon retirement. However, when the employer takes measures to promote the use of annual paid leave, the right to request an allowance for unused annual paid leave expires (Article of 61 of the LSA).

③ Whether to include annual paid leave allowance into average wages when calculating severance pay
(i) Unused annual paid leave allowance already occurring before retirement
By the criteria of attendance rate during the year prior to the retirement year, 3/12 of the unused annual paid leave allowance occurring the year prior to the retirement year shall be included in the basic wage items used to calculate average wage for severance pay.
(ii) Unused annual paid leave allowance occurring only due to retirement
The unused annual paid leave allowance that the employee is granted due to retirement in the retirement year according to the attendance rate of the year before the retirement year shall not be included in the basic wage items used to calculate average wage for severance pay, because the unused annual paid leave allowance is not wages paid during calculation of average wage.

(2) Promoting the Use of Annual Paid Leave
If an employee has not used the leave days saved within the year, he/she shall be paid for the unused days of leave at average or ordinary wages, as prescribed in the rules of employment. However, if the employee has not used annual leave despite the employer strongly promoting its use, the employer is exempted from the obligation to provide monetary compensation for the unused annual leave.
① In the means to promote the use of leave, the employer has the right to change the date selected by the employee for his/her leave, as the employee's leave rights are restricted since the employer shall only promote the use of leave shortly before the leave expires.
② When an employee specifies the period for using leave upon the employer's request, the specified period shall be admitted in principle, and the leave shall be effective during no other period. If the employer decides on the period instead, because the employee fails to do so, it shall also remain unchanged. However, if the employee specifies the leave period, but it is deemed that business operations will be seriously impeded if leave is granted for that specified period, the period concerned may be altered.
③ Regarding promotion of the use of annual leave, it is frequent for companies to take formal measures without assigning annual leave for definite working days to employees and in this way avoid paying allowance for the unused annual leave. That is, companies promote the use of annual leave by informing through email only. In cases where the employees come to work on days designated for annual leave, companies do not pay annual leave allowance for unused annual leave owing to their efforts to promote the use of annual leave. However, as this shows that such companies did not provide the use of annual leave on the designated days, the fact that employees could not use annual leave was due to reasons attributable to the employer, who shall then pay an unused annual leave allowance.
 Ministry of Employment & Labor Guidelines
The ‘written document’ mentioned in Article 61 of the LSA refers to a paper document. Electronic documents are only possible in exceptional cases where the company has handled every operation by means of electronic documents in the process of its drafting, obtaining approval and implementing through equipped electronic work-processing systems. Accordingly, informing by email in the course of promoting the use of annual leave cannot be regarded as notification by written document.
If the employee has submitted a vacation plan with stipulated dates of leave after the employer has promoted the use of annual leave, the stipulated dates of leave shall be regarded as the employee’s declaration of intention to use his/her annual leave. In cases where the employee comes to work on the stipulated date of leave, if the employer received the employee’s labor and did not express an objection to his/her coming in to work, it shall be regarded that the employer has approved the labor service on the expected date of leave, and so the employer shall pay an unused leave allowance.

(3) Substitution of Annual Paid Leave
The employer may, through a written agreement with the labor representative, have employees take a paid leave on a particular working day in substitution of annual paid leave (Article 62 of the LSA). The particular working day means a particular day among contractual working days required for labor duty. Accordingly, the employer cannot, pursuant to Article 62 of the LSA, substitute a paid leave day with contractual holiday and leave, nor with statutory holiday and leave.

2. Contractual Leave
(1) Concept
Contractual leave refers to paid vacation, free of labor provision in accordance with employer approval, a collective agreement or the rules of employment. Such leaves include congratulatory and condolence leave, sick leave, summer vacation, and other special leave, etc. Contractual leaves are not statutory like annual paid leave, or maternity/paternity leave, but are introduced to maintain traditional Korean values and improve employee well-being, and can be stipulated as paid, partially paid, or unpaid leaves. A company that does not stipulate these contractual leaves is not in violation of the Labor Standards Act.

(2) Types of Contractual Leave
1) Congratulatory and condolence leave
Many companies provide congratulatory and condolence leaves for wedding and funeral services in accordance with traditional Korean rituals. Although the coverage and number of leaves vary from company to company, these leaves are granted as an addition to annual paid leaves. A maximum of five leave days are given for an employee’s wedding as congratulatory leave, a maximum of five days are given as condolence leave in the event of the death of an employee’s direct family member, and one day is given for a parent’s 60th birthday.

2) Sick leave
Should an employee be unable to carry out his/her duties due to non-occupational injury or illness, the employee shall use annual paid leave to receive medical treatment and shall bear the medical expenses him/herself as there is no statutory sick leave. Government employees can use up to 60 days per year sick leave according to Article 18 of the Government Employee Service Regulations (Sick Leave). In the private sector, if an employee has used up all his/her annual leave days, he/she may request unpaid leave to take care of illness or injury. If the employee has to continually be absent in order to receive treatment for his/her illness or injury, the company can dismiss the employee for reasons attributable to the employee. Many companies have some restricted types of sick leave, such as follows.



3) Summer vacation
Summer vacation refers to contractual leave granted of a maximum one week besides annual paid leave during the heat of the summer in order to promote employee morale. This summer leave is used collectively by production companies, while smaller companies generally use annual paid leave days as summer vacation.