MOEL Interpretation

Labor Standards Act

General Provisions


  •  
     Search
137 Records
137.Are graduate student teaching assistants considered “workers” under the Labor Standards Act?
136.• Recruitment Background and Salary The individual in question was hired as a researcher to carry out a project at the university-affiliated Urban Technology Research Institute, based on a verbal agreement, for the period from September 1, 2004, to August 31, 2007 (planned). The agreed monthly salary was KRW 1 million, which was paid by the university foundation. In addition to the fixed salary, irregular bonuses were provided depending on participation in additional projects. The individual concurrently served as a part-time lecturer at ○○ University’s College of Engineering from March 1, 2003, to February 28, 2005, under a written contract, and also lectured at other universities. • Job Duties and Title The university-affiliated research institute undertakes fee-based technical service projects commissioned by external agencies under contracts with the university foundation. Under the direction of the research director, the individual served as the Head of Construction Management and Business Research. Duties included research on the development and optimization of construction project management techniques, drafting proposals and detailed project plans, and preparing strategies for operating the construction research lab. • Workplace and Hours Although no written work rules existed, the nominal working hours were from 9:00 AM to 6:00 PM. Due to excessive workload, the individual often stayed at the research institute (located off-campus in a leased building) for days at a time, returning home only once every 2–3 days. • Training and Instructions To perform project duties efficiently, the individual received ongoing instructions and education during working hours from a supervising professor through meetings. • Non-substitutability of Work Each researcher at the lab was assigned to a specific field of expertise. Tasks could not be delegated to third parties. The work assigned to the individual was non-substitutable and had to be carried out personally. • Ownership of Work Tools All work tools including computers and stationery were provided by the research institute. The individual bore no personal expenses for tools. • Social Insurance Due to the institute’s customary practices, the individual was not enrolled in the four major social insurance programs (National Pension, Health Insurance, Employment Insurance, and Industrial Accident Compensation Insurance).
135.An individual was employed as a department head at a mutual savings bank, and on June 9, 2005, was appointed as an executive officer (집행임원) by a resolution of the board of directors. On the same day, the individual resigned as an employee (receiving severance pay and approximately 100 million KRW in retirement bonus) and began working as a non-registered executive officer (a non-registered director). This individual resigned on November 15, 2005. According to the company’s articles of incorporation, the executive officer is defined as one who assists the CEO and executes the company’s operations as delegated by the board of directors. The Executive Committee, to which the executive officer belongs, consists of the CEO, two registered directors, and three non-registered executive officers (non-registered directors). This Executive Committee functioned as the highest decision-making body, holding authority above the CEO. It decided on: Long-term and short-term management plans, Revisions of business and management regulations, Handling of bad debts, Borrowing agreements, Determination of lending and deposit base rates, Contracts, litigation, and loan-related business execution. Within this committee, the executive officer exercised equal voting rights alongside registered directors, and following appointment, was assigned and carried out certain business execution responsibilities through committee decisions. After resigning as department head and being appointed as an executive officer, the individual received executive-level compensation and severance terms, which were 1.5 times higher in salary and 2.5 times higher in severance compared to ordinary employees. In November 2005, during a management dispute, the CEO appointed together with this executive officer was dismissed by the board, and this executive officer—having shared executive decision-making power—was also dismissed simultaneously.
134.○○ Corporation’s primary duty is to improve services for large-scale farmers through the management of repair and water facilities. To efficiently manage individual water facilities by region, the company entrusts local residents (hereinafter referred to as “facility managers”) with the management of such facilities. Operational Structure of Facility Managers Facility managers are local farmers residing near the facility and are assigned the responsibility of inspecting and managing the facilities without consideration of age, education, or employment criteria. They are selected based on their familiarity with local conditions and ability to monitor facilities. While continuing their primary work in farming, they autonomously perform monitoring and management tasks of the facilities without fixed working hours, break times, holidays, or vacation periods, and notify the company of the results. In urgent situations such as floods, they guide local residents and maintain communication with the company by providing contact details in advance. They also notify the company if they plan to be away from the work area for an extended period. Facility managers are not subject to the company’s rules of employment or internal regulations, and are compensated monthly based on the number and size of the managed facilities, ranging from KRW 100,000 to 550,000. Opinions Opinion A: Not Recognized as a Worker under the Labor Standards Act Facility managers carry out monitoring and management tasks of reservoirs, canals, weirs, sluice gates, and pumping stations while engaging in farming, their main occupation. They are entrusted with managing specific areas without being under the direct control of the employer, perform their duties autonomously regardless of working hours, and are not in a subordinate employment relationship under a labor contract. Therefore, they cannot be regarded as workers under the Labor Standards Act, as their duties are merely of a monitoring and management nature and do not establish a subordination-based employment relationship. Opinion B: Recognized as a Worker under the Labor Standards Act Although facility managers continue their farming duties, they provide labor for the purpose of receiving compensation. Therefore, regardless of working hours or direct supervision, they should be considered workers under the Labor Standards Act.
133.A certain corporation outsourced its 114 call service operations as a remote work arrangement, providing the necessary facilities, equipment, and supplies for working from home, and designated specific working hours for the remote work. Working Conditions: Although no direct supervision or command is given, basic wages are calculated and paid on an hourly basis, and an additional 50% wage is paid for night work. If work is not performed due to the worker’s fault or if scheduled tasks are not completed, wages for those hours are not paid. Remote workers receive a monthly fixed payment that includes compensation for space usage, electricity, and communication fees. Working hours cannot be changed arbitrarily. Work is performed six days a week, for five hours per day as a general rule.
132.academy is considered an employee. Working Conditions: The monthly salary consists of a fixed amount (teaching administration allowance) and performance-based pay based on teaching hours. The average daily teaching time is irregular, around 3 to 5 hours, and the instructor is free to teach at other academies during non-teaching hours. The instructor does not receive specific instructions from the director but conducts classes according to their own schedule. The instructor commutes only when they have scheduled classes and does not report attendance. The instructor is not enrolled in health insurance, national pension, or employment insurance, does not pay earned income tax, and files business income tax as a self-employed individual with the tax office.
131.Whether an animator employed by an animated film production company qualifies as a worker.
130.Whether an animator employed by an animated film production company qualifies as a worker.
129.Whether resident doctors and interns at a general hospital, who work over 100 hours per week and take night shifts once every three days including holiday work, are considered workers.
128.Whether a motorcycle quick service delivery rider qualifies as a worker under the Labor Standards Act.
127.Whether gas delivery workers at an LPG delivery company are considered workers under the Labor Standards Act, under the following conditions: The delivery vehicles (1-ton truck or motorcycle) used for gas deliveries are owned by the delivery workers All expenses related to the vehicles (insurance, fuel, taxes, repairs, depreciation, meals, etc.) are fully borne by the delivery workers The payment system is a performance-based compensation of KRW 1,600 per 20kg cylinder (including severance pay), or KRW 1,400 per cylinder if severance is not included Work hours (07:00–21:00) are customary, but no fixed working days are designated There are no disciplinary measures for unauthorized absences or refusal to work, though such actions can be grounds for termination (the company has no separate internal regulations) Even when company-owned vehicles are used, all related costs (installments, taxes, insurance, fuel) are paid by the delivery worker; ownership transfers to the worker after the installment period ends No fixed salary is provided; compensation is paid monthly based on the number of deliveries (KRW 1,600 per 20kg cylinder) Delivery zones are designated by the company. Delivery workers wait with their vehicles in assigned areas and deliver upon receiving instructions from the company Motorcycle delivery workers, due to capacity limitations, wait at the company office and deliver based on company instructions Most workers are not enrolled in health insurance, employment insurance, or withholding tax systems, though a few are; in cases of withholding tax, the company pays it on behalf of the worker
126.In the case of the ○○ Provincial Gugak Center, performers are designated as “full-time appointed members” under Article 15 (Salaries and Expense Reimbursement) of the local ordinance (○○ Provincial Gugak Center Operations Ordinance, Jan. 12, 1999, Ordinance No. 2638). While they are sometimes interpreted as contract-based skilled public officials, in reality, they are not subject to the Local Public Officials Act, unlike regular local public servants. Regarding salaries and allowances, Article 14 of the Ordinance Enforcement Rules (Salaries and Allowances) stipulates that basic pay shall be equivalent to that of general public officials from Grade 9 to Grade 5, depending on position. However, they are not subject to the Regulations on Remuneration of Local Public Officials or the Regulations on Allowances for Local Public Officials. In terms of discipline, they are subject only to Articles 24 to 28 of the Ordinance Enforcement Rules (e.g., request for disciplinary action, increased penalties), and not to the disciplinary rules under the Local Public Officials Act. Their service conditions are governed independently by the Full-Time Appointed Members’ Service Rules of the ○○ Provincial Gugak Center (established July 27, 1993, Directive No. 1038), including work hours (Articles 8–9), leave (Articles 11–21), performance evaluations and disciplinary actions (Articles 22–33), which differ from the regulations applicable to local public officials. Thus, in all practical aspects, they are not governed by the regulations of the Local Public Officials Act. Additionally, the ○○ Provincial Gugak Center is a provincial institution under the ○○ provincial organizational structure. According to the staffing chart for such provincial institutions, the Gugak Center includes 11 public officials: 6 general and 5 technical staff (such as the director, administrators, electricians, heating and driving staff, and administrative assistants). However, the performers in the Center's performing arts troupe, who have formed a labor union, are not included in the official public servant roster. Therefore, although the Gugak Center’s performers may appear similar to local public officials, they are not officially recognized as such. As such, they should be considered workers under the Labor Standards Act and should be entitled to its protections. We request your official opinion on this matter.
125.Freight owner-operators can be categorized into regional freight and route-based freight drivers. A regional freight owner-operator is affiliated with a freight corporation but operates on self-developed routes and directly deals with customers without being directed or supervised by the company regarding working hours or start/end times. They manage all income themselves and can transfer to another company along with their vehicle even if the corporation dissolves. In contrast, a route-based freight owner-operator, such as those at ○○ Freight Co., Ltd., is: Hired through a formal employment process, Leases a company-registered vehicle by purchasing it (i.e., vehicle ownership remains with the company), Operates according to the dispatch times and routes set by the company, Has all transportation income managed by the company, Is subject to disciplinary actions by the company if they violate the company’s work rules or a collective agreement, And receives monthly fixed wages under a wage agreement concluded between labor and management. These drivers: Cannot transfer to another company with their vehicle, Must sell their vehicle to another driver in the company if they are dismissed or resign, And lose all rights to the vehicle if the company dissolves. Given this, the question is: Does such a "de facto owner-operator" qualify as a worker under the Labor Standards Act?
124.Is ○○○, the team doctor (masseur) affiliated with A Professional Football Club, considered a worker under Article 14 of the Labor Standards Act [currently Article 2]? A Professional Football Club consists of a team division (coach, assistants, team doctor, players) and a front office (executive director, team managers, administrative staff, and bus drivers). Team doctor ○○○ signed an annual salary contract with the club from December 23, 1996 to March 31, 2000. He received a total annual salary of 20,400,000 KRW (1,700,000 KRW/month), along with 20% of victory bonuses and a vacation bonus, while being responsible for managing players' physical conditions during training and matches under the supervision of the head coach. The contract was made using a player salary contract form as prescribed by the Korea Professional Football League regulations, and victory bonuses were applied in reference to the team management regulations. Working hours typically started at 7:40 AM with no clearly defined end time, but usually lasted until 11:00 PM, aligned with the players' training schedule and rest periods. 2 to 3 vacation periods per year, each lasting 10–15 days, were granted at the discretion of the head coach. The head coach solely managed team affairs; the front office did not intervene in the team’s internal matters. All supplies required for the team doctor’s work were provided by the club, and the position was non-substitutable. He did not pay income tax on wages but rather had business income tax withheld (which he acknowledged), and he was not enrolled in the four major social insurances (although he once had health insurance coverage similar to the players, which was later canceled by the National Health Insurance Service, stating that players were not eligible as insured persons). He joined training camps (about 1 month) and matches (36 per year) and stayed with the players during those times.
123.Our company has been operating the "2+1 system" of high school on-site training students since 2000 as part of an industry-academia cooperation initiative promoted by the government. The 2+1 system refers to a practice-oriented education model consisting of 2 years of school-based education and 1 year of industrial on-site training during the 3 years of high school. At our company, we prepare a “Standard Agreement for On-Site Training” for a one-year period and conduct the training based on this agreement. Trainees are paid a training allowance in accordance with the regulations. The Supreme Court ruling states: “Even a trainee who is expected to graduate may be considered a worker if a subordinate relationship to the employer is recognized, in which case the Labor Standards Act applies. That is, even if the trainee is a high school senior and the training period is temporary, one cannot conclude that the Labor Standards Act does not apply solely for those reasons. If a subordinate relationship under Article 14 [now Article 2] of the Labor Standards Act is acknowledged based on the nature of the employment contract, the nature and content of the work, and whether remuneration is paid, then the trainee is considered a worker to whom the Labor Standards Act applies.” [Supreme Court Ruling 86DaKa2920, June 9, 1987] (Question 1) If the nature and content of the training are similar to those of the company’s employees, and the trainee receives compensation (on-site training allowance), can the trainee be considered to have formed a subordinate relationship with the employer and thus be classified as a worker as described in the above ruling? (Question 2) Can the training agreement based on the attached “Standard Contract” be regarded as an employment contract between the employer and the trainee, as referred to in the ruling?
122.This is an inquiry regarding whether □□□ and two others, who worked as full-time officers of the ○○○ Labor Union (hereinafter “○○○ Union”), are considered workers of the union, in relation to a wage arrears claim they filed against the union chairperson. View A (Pro-Worker): The union full-time officers at ○○○ Union performed union duties in the union office under the instructions of the chairperson, adhered to working hours, obtained approval for absences, and were regularly paid a certain amount under the title of "wages" during their tenure based on the salary they would have received as incumbent teachers. They worked at a fixed location and provided labor to the union as full-time officers. → Therefore, they should be considered workers under the Labor Standards Act. View B (Anti-Worker): According to Article 5 of the Act on the Establishment and Operation of Teachers’ Unions, full-time union officers of the ○○○ Union are appointed with the approval of the appointing authority (Ministry of Education) to participate in union activities, and thus cannot be considered to have been employed by the union chairperson. Furthermore, Article 24 of the Trade Union and Labor Relations Adjustment Act defines full-time officers as those who, without providing labor to the employer, solely engage in union activities, not as workers employed for wages. Additionally: There is no clear internal regulation stipulating the payment of wages to full-time officers. Disciplinary actions against union members and officers are made through resolutions at general assemblies, not through management decision. No written employment contract specifying wages or working conditions was signed between the chairperson and the full-time officers. The payments made to them were not based on their duties, position, work performance, or experience, but rather irregular payments loosely based on what they would have earned as public school teachers. These payments are better understood as activity expenses necessary for union work, not compensation for labor. During their full-time tenure, they were not enrolled in the four major social insurances as workers, and no employment income tax was paid on the union payments. → Therefore, they should not be considered workers under the Labor Standards Act.
121. 1. Background The Ministry previously determined (December 2001) that “home-based mail carriers” are workers. However, the court (Seoul Civil Court, 1st Instance) denied their worker status (November 2002). – This prompted a review of their employment nature by comparing the facts of a previous case involving remote-area contract mail carriers (Labor Standards Division – 769, February 16, 2004) and reconsidering the worker status of home-based mail carriers. 2. Comparison of Worker Status: Home-Based vs. Remote-Area Contract Mail Carriers Category Home-Based Mail Carriers (Court Ruling) Remote-Area Contract Mail Carriers (Previous Case) Contract Procedure – Opinions differ on independence, discretion in work execution. – Only resume and resident registration copy submitted; no background check. – No hiring qualifications required. – Required two personal guarantors and submitted documents similar to public servant recruitment. Direct Supervision – No fixed working hours; work performed freely at one's convenience. – Delivered only the mail provided. – Not subject to workplace rules; no disciplinary action for non-compliance. – Arrived at work on time to collect mail. – Personally sorted mail. – Also collected outgoing mail. – Not subject to workplace rules. Time and Place Constraints – Virtually no time constraints; work completed within available hours. – Set working hours imposed. – Delivery zones fixed (e.g., Dobido, Daenanjido, Sonanjido) — location constraints apply. Substitutability & Exclusivity – Others (e.g., family) could substitute when needed. – Free to use leftover time. – Required to collect mail personally; substitution impossible. – Due to fixed delivery routes and ferry schedules, little to no free time available. Compensation Characteristics – Though calculated per hour for convenience, actual pay was based on volume handled. Contracted hours/days only served to estimate total volume, not hourly wage under the Labor Standards Act. – Due to fixed arrival/departure times and workload, daily wage was deemed commensurate with actual working hours. Work Tools & Welfare – Uniforms and delivery tools provided as rentals (effectively free). – Other items (pens, ink pads, string, packaging) self-purchased. – Same for uniforms/tools. – Other materials provided at post office, thus no personal expense. Mandatory Training – Attendance not enforced, but most attended. – Received guidance at post office; no separate training. Worker Recognition under Other Laws – Not enrolled in industrial accident insurance, national pension, employment insurance, or health insurance. – Same. Conclusion Home-Based Mail Carriers (Court Ruling): – Cannot be considered workers under a subordinate relationship providing labor for wages. Remote-Area Contract Mail Carriers (Previous Case): – Due to conditions such as submitting documents similar to full-time staff, receiving specific instructions, time and place restrictions, pay corresponding to hours worked, and lack of substitutability, – Despite being excluded from the four major insurances, – They are considered workers under a subordinate relationship providing labor for wages. (Some facts confirmed via phone with the parties involved)
120.○ Contracting Parties ‒ Party A: The ◯◯ Association is a special corporation established under the Industrial Standardization Act of 1962. It conducts industrial education, research and studies related to industrial standardization and quality management, and performs KS/ISO certification, as well as publication and distribution of domestic and international standards. ‒ Party B: The part-time expert committee members carry out education entrusted by the association, develop TPM (Total Productive Maintenance) programs, and perform sales and consulting activities. ○ Work Details of the Part-time Expert Committee Member ‒ Lecturing: Acts as an in-house instructor according to the education plans and schedules of the association’s TPM/Production Innovation Team. If the evaluation scores from trainees fall below a certain threshold, the individual is excluded from further lecturing. If the score meets or exceeds the threshold, they continue lecturing and may be assigned more subjects. ‒ TPM Diagnosis and Consulting: Based on the TPM consulting contract between the association and the company, the expert visits the client site to perform diagnostics for TPM consulting or provides on-site consulting services. Afterward, the results must be documented and reported to the association’s TPM/Production Innovation Team. ‒ Other Tasks: Serve as a judge for quality circle competitions, develop curricula for maintenance technician training, prepare exam questions, and grade exams. ○ Compensation and Insurance ‒ Compensation consists of a lecture fee of 45,000 KRW per hour, a consulting fee that varies depending on the contract based on an 8-hour workday, and a fixed research allowance of 400,000 KRW per month. The individual is not enrolled in employment insurance, industrial accident insurance, national health insurance, or the national pension. ○ Working Conditions ‒ Travel expenses are paid for business trips. While there is no obligation to clock in and out, the individual must respond to summons by the association and is required to adhere to scheduled lecture and consulting hours. ‒ The member works between 4–5 days to up to 22 days a month depending on the number of assigned lectures, consultations, evaluations, and diagnostics. On days without lectures or consultations, research is conducted at home. ‒ The member is not permitted to give lectures or consultations individually for other organizations without the association’s consent. Violating this may result in contract termination. The member may not delegate lectures or consultations to third parties. ‒ If the member neglects duties, lacks competence, or experiences physical or mental issues affecting job performance, it may affect their continued appointment. Inquiry Purpose Whether a retired part-time expert committee member of the association is considered a “worker” under the Labor Standards Act for the purpose of receiving severance pay.
119.Question About the Inquirer's Status The individual entered the company in December 1999 as a department head and was promoted to director in 2003. He is an engineer with no shareholding in the company, has no familial relation to the CEO, and therefore has no authority over property rights. All tasks are carried out with the CEO’s approval, and he receives regular compensation as a normal wage for his work, just like other employees. Question: Is this person a worker or an employer? Question About Colleagues Among two colleagues with the title of department head, one is registered as a director and the other as an auditor in the corporate registry. They perform tasks corresponding to their positions and receive department head-level salaries. They also do not hold any shares in the company and were listed as executives in the corporate registry not by their own will but to meet quorum requirements. Question: Are these individuals workers or employers?
118.Our company is a small- to medium-sized enterprise that manufactures and sells ○○○, with headquarters and a factory located in ○○, North Chungcheong Province. We have been under court receivership since receiving approval for corporate rehabilitation procedures from the ○○ District Court on September 5, 2000. Regarding whether a registered executive qualifies as a worker in this case: In early March 2007, our company applied to ○○ Employment Center for work hour reduction support following the implementation of a five-day workweek. Based on the certified copy of the corporate registry we submitted, the ○○ Employment Center judged that the company’s registered executive was not a worker and recommended that we file a loss report (i.e., withdrawal) for employment insurance and industrial accident insurance. In response, we contacted the ○○ Workers’ Compensation & Welfare Service (KCOMWEL) by phone in late March 2007, in connection with our confirmed report of 2006 insurance premiums and advance payment application for 2007 industrial accident and employment insurance premiums. The ○○ Workers’ Compensation & Welfare Service stated that even a registered executive should be considered a worker, making it difficult for us to determine whether to withdraw the executive’s coverage under employment and industrial accident insurance. The executive in question, Mr. Seo ○○, was appointed by court order during the corporate rehabilitation procedure, had his executive remuneration determined by the court, and is currently serving as an executive responsible for management and sales within the company.
<<  <  1 2 3 4 5 6 7 > >>


For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com