II. The Workplace Harassment Prevention Law and the Employer’s Duty

Recently workplace harassment within large corporations has become a social problem. Every day it seems that the executives of these companies are reported by the media on issues such as abusive language, assault, and inhumane treatment of their employees, but these acts which are revealed to the public are but the tip of the iceberg. According to a survey by the Korea Labor Institute, Keunjoo Kim/Kyunghee Lee, 「A Survey of Workplace Harassment and The Countermeasures」, Korean Labor Institute, December 2017.
66.3% of respondents said that they had experienced direct harassment at their workplace in the past five years. Also, according to the Human Rights Commission's survey, Sungsoo Hong et al, 「A Survey of Workplace Harassment」, The National Human Rights Commission of Korea, November 2017.
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. The details are described below.

1. Content of the Workplace Harassment Prevention Law

(1) The employer's obligation to prohibit workplace harassment
Article 76-2 (Prohibition of Workplace Harassment) in the Labor Standard Act: 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.

(2) Obligations of the employer in case of an occurrence of workplace harassment (Article 76-3 of the LSA)
① Anyone who has learned the occurrence of workplace harassment may report such fact to the employer.
② Where an employer receives a report under paragraph (1) or becomes aware of the occurrence of workplace harassment, the employer shall, without delay, conduct an objective investigation of the persons involved to ascertain the fact.
③ Where necessary to protect employees who suffer or claim to suffer workplace harassment (hereinafter referred to as "victimized employees, etc.") while investigation under paragraph (2) is conducted, the employer shall take appropriate measures for the victimized employees, etc., such as transferring their place of work or ordering them a paid leave of absence. In such cases, the employer shall not take measures contrary to the will of the victimized employees, etc.
④ Where the occurrence of workplace harassment is verified as a result of investigation under paragraph (2), the employer shall take appropriate measures for the victimized employees, etc., such as transferring their place of work, giving them a lateral transfer or ordering them a paid leave of absence, if the victimized employees, etc. make a request.
⑤ Where the occurrence of workplace harassment is verified as a result of investigation under paragraph (2), the employer shall, without delay, take necessary measures, such as taking disciplinary measures against the perpetrator of workplace harassment or transferring his or her place of work. In such cases, before taking disciplinary measures, etc., the employer shall hear opinions of the victimized employees, etc. on such measures.
⑥ No employer shall dismiss employees who report the occurrence of workplace harassment, victimized employees, etc., or treat them unfavorably.
⑦ No person who investigates the occurrence of workplace harassment pursuant to paragraph (2), who receives a report on the details of investigation, or who participates in the investigation process of workplace harassment shall divulge confidential information learned in the course of investigation to any other persons against the will of the victimized employees, etc.: Provided, That the same shall not apply where the investigator reports matters relating to the investigation to the employer or provides necessary information at the request of a relevant institution.

(3) Amendment to the Industrial Accident Compensation Insurance Act
Article 37 (1) of the IACI Act, which lists reasons for acceptance as occupational diseases, 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".

(4) Amendments to the Industrial Safety and Health Act
Article 4 of the ISH Act (Government obligations) added a new item: “10. Establishment, guidance and support of measures to prevent workplace harassment pursuant to Article 76-2 of the Labor Standards Act”.

2. Explanation of 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, the labor law had no legal obligation or liability for workplace harassment. 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 to protect the workers with measures to receive remedy for workplace harassment. Therefore, under the existing legal system, the measures that a victim who had been harassed in the workplace could take to the employer included
① a claim for damages based on the liability of the victim for illegal acts (Article 750 of the Civil Act),
② a suit for damages (violation of the obligation of safety considerations by labor contract) (Article 390 of the Civil Act), and
③ a complaint under Article 30 (Human Rights Violation) of the National Human Rights Commission Act.
④ By informing the labor inspector and the Minister of Employment and Labor of the damages incurred, an employee can seek redress directly through filing a legal complaint for violation of Article 116.

(2) Establishment of the employer's duty for action in case of workplace harassment
In case of workplace harassment, 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 fact. In the course of this investigation, measures should be taken to protect the victim and, if the investigation confirms the workplace harassment, disciplinary action should be taken without delay.

(3) The addition of ‘workplace harassment’ in the required items of 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. Labor Ministry Guideline: “Operational Guides for the Rules of Employment”, LSA Dept-1119, April 24, 2009.


(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 disadvantageous treatment of victims is taken, the employer should and can be severely punished, similar to the Equal Employment Act. In other words, 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”, and so this article will provide a legal basis to 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 Industrial Safety and Health Act
Workplace harassment has an adverse effect on the mental and physical health of the workers, undermining their opportunity to work in a healthy environment. Therefore, the amendment to Article 4 of the ISH 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 ISH Act.

3. The Effect of the Workplace Harassment Prevention Law

It is not easy for ordinary workers to take legal action for harassment against a workplace 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 obligation of prohibition of workplace harassment by an employer, along with the obligation to implement relief procedures that will enable victims to receive protection and relief from workplace harassment more quickly.