Recently, South Korea has entered an era of low birthrates and aging population, and is introducing foreign workers to address the problem of labor shortages. As of the end of December 2019, there were 2.5 million foreigners residing in South Korea, and it is expected that the number of resident foreigners will reach 3 million (5.8% of the total population) in 5 years if this trend continues. (Ministry of Justice, Immigration Policy Headquarters, Monthly Statistics Report, December 2019)

Foreign workers who work on a regular basis should receive the same protection under labor laws as domestic workers, but in practice, such protection is not properly provided. The reasons for this include: (1) difficulty in finding one's own rights due to lack of communication, (2) lack of freedom of movement in the workplace due to strict control under the Immigration Control Act, (3) limited choices of workplaces, and (4) difficult environmental conditions for seeking labor rights remedies under labor laws. The right of foreign workers to pursue a humane life and happiness is fundamentally a human rights issue, and the government and corporations have an obligation to protect it. The labor rights guaranteed by the Labor Standards Act should ensure that foreign workers have access to minimum standards that uphold human dignity, so that they can pursue a happy workplace life. (Jo Hyo-je, Human Rights Odyssey, Kyoyangin, 2015, p.322)
In the following, we will examine the employment system and rights remedies for foreign workers in South Korea.


■ The Reality of Foreign Workers in Simple Labor Positions
The majority of human rights violations against foreign workers are attributed to those working in simple labor positions. Ethnic Korean workers have the freedom to choose their workplace, and their legal protection regarding labor laws is not significantly different from that of domestic workers. In the case of professional foreign workers, there are some limitations to their legal protection, but these can be resolved through work visas or by transferring to another company. However, foreign workers in simple labor positions have many limits to their labor law protection.
The labor conditions set by the Labor Standards Act are based on the principle of "equal pay for equal work," regardless of whether the worker is a foreigner or a domestic worker. While there may be differences between foreign and domestic workers in terms of language or job skills, discrimination occurs when these differences violate the principle of proportionality.
Foreign workers in simple labor positions face weak legal protection in several areas. ① in individual employment relationships, they are not free to change their workplace for three years unless the employer agrees. ② their wages are often set at the minimum wage, regardless of their years of service or skill level. ③ even if they have worked for more than a year, many foreign workers in simple labor positions do not receive paid annual leave. Furthermore, there is almost no compensation for unused paid annual leave. ④ regarding severance pay, foreign workers in simple labor positions only receive an outbound insurance payment when returning to their home country, rather than receiving compensation due to retirement.
Simple labor foreign workers are guaranteed the three labor rights in collective labor relations, and even illegal immigrant workers are officially recognized as labor unions and are active. Nevertheless, simple labor foreign workers are fixed-term workers, so employers can control their collective actions. Therefore, it is practically impossible to exercise the three labor rights.
Regarding the application of the four major insurances, foreign workers in simple labor positions face the following issues: Firstly, while they are naturally protected by industrial accident insurance, proper handling of industrial accidents is not always ensured unless they are serious. Secondly, employment insurance for foreign workers is optional, rather than mandatory, resulting in a lack of insurance coverage for most businesses. Consequently, foreign workers who quit their jobs for a change of workplace cannot receive unemployment benefits during the job search period. They are also unable to receive employment insurance support during maternity leave or childcare leave.

■ Employment System for Foreign Workers
Currently, the employment of simple-function foreign workers is managed through the employment permit system, and professional foreign workers are managed by their residence status according to the Immigration Control Act. However, relying solely on the employment system for simple-function foreign workers is not enough to overcome social conflict and the backwardness of the industrial structure. It is now necessary to make policy choices regarding the employment system and rights protection for foreign workers. The introduction of simple-function foreign workers should be restrained while maintaining the principle of short-term circulation, and for existing skilled foreign workers and professional foreign workers, exceptional naturalization should be recognized to encourage long-term residence.
First, as a means of improving the employment system for simple-function foreign workers, it is necessary to ensure the freedom of choice and movement of businesses and to maintain the policy of short-term circulation.
Second, the following measures should be taken to expand the introduction of ethnic Korean workers: Expanding the range of overseas Korean (F-4) residence qualifications for Chinese and former Soviet Union ethnic Koreans who enter the country on a visit employment visa (H-2), guaranteeing their freedom of employment and residence. In addition, systematic social integration education for ethnic Korean workers is necessary to reduce social costs resulting from the increase of simple-function foreign workers and to supplement the shortage of labor.
Third, the following measures should be taken to expand the introduction of professional foreign workers: 1) The introduction of a labor permit system for professional foreign workers is necessary. 2) Professional foreign workers should be managed through the Foreign Employment Act. 3) A cooperative relationship between the Immigration Control Act and the Labor Relations Act should be established to activate rights protection functions. 4) Active exploration of the utilization of foreign students should be pursued.

■ Remedies for the Rights of Foreign Workers
The protection of the rights of foreign workers in individual employment relationships, collective labor relations, and social insurance and private insurance sectors can be achieved through the following measures:
Firstly, in the area of individual employment relationships, the principle of non-discrimination applies, but exceptions can be made for reasonable discrimination based on factors such as skill level, proficiency in the Korean language, length of service, or duration of contract for fixed-term employees, and discrimination based on visa or residency status under the Immigration Control Act can be considered legitimate. However, if the degree of discrimination exceeds the proportionality principle, reasonable discrimination cannot be recognized.
Secondly, paid annual leave is a statutory employment condition and therefore applies to foreign workers. However, in reality, foreign workers are not granted this entitlement. Amnesty International, "Exploitation and Forced Labour of Migrant Workers in Korea's Agriculture and Livestock Industries," 2014, pp. 29-30.

Thirdly, foreign workers require the assistance of the "Foreigner Counseling Center" since they cannot communicate effectively through regular administrative channels, making it difficult for them to seek remedies or resolve grievances. The Foreigner Counseling Center is a temporary professional counseling center that is not part of the regular dispute resolution system. Therefore, it is necessary to assign labor inspectors to the Foreigner Counseling Center to enable labor inspection administration. The National Human Rights Commission has recommended that the Ministry of Employment and Labor grant the Foreigner Counseling Center the power to mediate foreign workers' complaints. National Human Rights Commission, "Improving the Employment Permit System for the Improvement of Foreign Workers' Treatment," 2015, p. 20.

Fourthly, in the area of collective labor relations, the following improvements are needed to enhance foreign workers' employment conditions: guaranteeing the three labor rights, promoting unionization of foreign workers in the workplace, accepting foreign workers' membership in existing labor unions in non-unionized workplaces, and promoting the activation of labor-management councils involving foreign workers. While labor union activities by foreign workers are guaranteed under the current law and precedents, restrictions may apply due to their short-term residency status.
Fifth, the following improvements are necessary in the fields of social insurance and private insurance. In the case of employment insurance, mandatory enrollment and expansion of job training must be pursued. This is because by enrolling in employment insurance, one can receive not only unemployment benefits, but also maternity leave benefits and childcare leave benefits. In the case of industrial accident insurance, it is necessary to convert workplaces that are excluded from the application of industrial accident insurance in rural areas into mandatory enrollment workplaces in order to activate the processing of industrial accidents. In the case of national health insurance, illegal immigrants should be allowed to enroll in national health insurance in order to protect basic rights. In order to prevent illegal residence for national policy reasons, illegal immigrants are excluded from coverage by national health insurance. The health protection of foreign workers should be protected as a basic human right.
In the case of national pension, simple-function foreign workers should be excluded from the list of beneficiaries since they do not have the right to receive old-age pensions. While there is justification for the application of national pensions to professional foreign workers and ethnic Korean workers who are allowed to stay for a long period, making national pensions a mandatory requirement for simple-function foreign workers who stay for a short period and are unable to stay for a long period could be an additional cost to employers who employ them. In the case of long-term care insurance for the elderly, simple-function foreign workers are not applying for the coverage of long-term care insurance when they enroll in national health insurance because they do not pay insurance premiums by applying for exclusion from coverage of long-term care insurance upon enrollment. Therefore, legal remedies are necessary to exclude the application of national pensions to simple-function foreign workers through an application for exclusion from coverage.
In the field of private insurance, with regard to departure expiration insurance, which can only be received upon departure, an exception for long-term foreign residents must be recognized. This limits the right to property by restricting the receipt of retirement pay, which is the worker's deferred wages, and discriminates against them compared to domestic workers. Although the Constitutional Court has determined that this is a legitimate measure to prevent illegal residence, it is necessary to supplement the system that allows long-term foreign workers to receive departure expiration insurance as retirement pay on an exceptional basis.
Lastly, in order to improve the employment system and rights protection of foreign workers, both the utilization and protection of human rights of foreign workers should be considered together. Through this, there is a need for a society in which foreign and domestic workers coexist harmoniously and cooperate. Therefore, long-term foreign residents are no longer strangers but rather our fellow citizens.