MOEL Interpretation

Employment Insurance Act

The insured


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32 Records
32.□ Factual Background 【Entrusted Operation of Joint Childcare Facilities】 Currently, 11 daycare centers under the jurisdiction of the ○○ City Office of Education are being operated under an entrustment system in order to ensure professional childcare services and minimize the budget burden of securing childcare personnel. Each director is in a contractual relationship with the respective elementary school principal and holds authority over the operation of the facility and the hiring and management of childcare teachers. The director receives a fixed salary according to guidelines set by the Ministry of Health and Welfare (formerly Ministry of Gender Equality and Family), and the facilities are not for-profit operations. 【Employment Insurance Coverage for Joint Childcare Facilities】 Currently, facility directors (who also act as principals) are considered parties to the entrustment contract and are registered as business owners, thus local labor offices (○○ Regional Labor Office) have responded that they are ineligible for employment insurance. However, there is some ambiguity in the relevant provisions, raising questions as to whether these facility directors fall under the exceptions. These directors are essentially salaried employees under contract, performing similar roles to ordinary childcare teachers, and the denial of employment insurance eligibility appears inequitable. The directors are only in an entrusted contract relationship and possess a business registration certificate solely due to this structure. □ Main Question Is a facility director who holds a business registration certificate and is under contract with the school principal while receiving a fixed salary eligible for employment insurance?
31.□ Factual Background ○○○○ Daycare Center has entered into an entrustment agreement between the Mayor of ○○ City and the head of the entrusted organization (○○ Academy). ※ Key details of the entrustment agreement: * Party A (Mayor of ○○ City) entrusts Party B (School Corporation ○○ Academy) with the operation of the daycare center, including all administrative affairs and facilities (building area: 221.221㎡ and equipment). The entrustment period is from January 1, 2007 to December 31, 2009 (not exceeding 3 years). * With regard to operating expenses, Party A may subsidize within the scope of the budget and based on childcare project guidelines for the year. All other costs shall be borne by Party B, who must manage subsidies in accordance with relevant laws and regulations. * Party B must appoint staff as prescribed by regulations. Personnel must meet qualifications under the Infant Care Act and related laws. Appointments are to be made publicly and reported to Party A. The facility director shall be appointed/dismissed by Party B with approval from Party A. Childcare staff shall be appointed by Party B upon recommendation by the facility director. * Revenues and expenditures must be managed within budget, and any deficit shall be covered by Party B. * Party B shall be liable in both civil and criminal terms for accidents occurring during daycare center operation. * The director is listed as the representative on the daycare center’s unique registration number issued by the tax office and is registered as the business owner for the 4 major social insurances. * The 4 major insurance registration and the insured registration were processed with the director''s handwritten confirmation. * When hiring teachers, the director is listed as the facility head on the ○○ City Childcare Information Center bulletin board. * The director manages staff attendance in accordance with guidelines from the Ministry of Gender Equality and Family. * The director prepares and executes the budget, reporting to both the foundation and ○○ City (confirmed via phone). * A separate employment contract was executed between the director and the entrusted institution. ※ Summary of the employment contract between the director and the head of the entrusted institution: The contract between ○○ Academy (Party A) and the employee (Party B) specifies monthly wages, working hours (9 a.m. to 6 p.m.), workplace, job title, etc. It stipulates that the employee follows Party A''s rules and instructions, and requires prior approval from Party A (or their authorized representative) for matters such as personnel appointments and dismissals, budget management, and program operations. The contract allows for early termination in the event of nonperformance or other justifiable reasons. All unspecified matters follow internal regulations, the Labor Standards Act, and related labor laws. □ Regional Labor Office Opinions Since the daycare center director is registered as the business operator for 4 major insurances, signs official documents, represents the center publicly, and manages internal staff according to the Ministry''s guidelines, the director is not considered a worker eligible for employment insurance. Despite the director being registered as a representative, they were only appointed by the ○○ University as a facility head, signed an employment contract with the president of ○○ University, follow internal regulations, and receive specific instructions from the university. Key responsibilities such as budget and personnel decisions rest with the university. Therefore, the director functions more as a middle manager and should be considered a worker eligible for employment insurance. Opinion B is deemed more appropriate.
30.□ Factual Background In some regions, welfare center directors operating under entrustment from local governments have been recognized as employers and thus denied eligibility for employment insurance. In this case, ○○○○○, under the jurisdiction of our regional office (center), has been entrusted every three years by ○○ District Office and operates ○○ General Social Welfare Center using subsidies from ○○ City and support funds from the corporation. A clear answer is requested regarding whether the director of the welfare center can obtain employment insurance coverage. The Social Welfare Corporation ○○○○○ operates the ○○ General Social Welfare Center under entrustment pursuant to Article 34(5) of the 「Social Welfare Services Act」, Article 23-2 of the Enforcement Rules of the same Act, and the relevant municipal ordinances on the direct and entrusted operation of district welfare centers in ○○ District of ○○ City. The director of the ○○ General Social Welfare Center is appointed by the personnel committee of the Social Welfare Corporation ○○○○○ and signs an employment contract with the corporation. Wages are paid in accordance with the basic salary payment standards for social welfare center staff set forth in the 2008 operation guidelines of ○○ City. The director complies with work regulations based on the Labor Standards Act and the operational guidelines of the welfare center. Hiring and personnel decisions for employees are handled by the personnel committee of the corporation, and wages are also paid by the corporation according to the same standards. Government subsidies for the center''s operation are directly received by the corporation and transferred to the welfare center. The corporation provides ongoing supervision of operational expense reports. For submissions to government agencies or community fundraising bodies, or when applying for and receiving funding through external proposals, the center must obtain approval from the corporation before initiating any new welfare project. Although the director is listed as the representative on the business registration certificate, the employer listed on the employment insurance registration card is the ○○ General Social Welfare Center itself. □ Inquiry and Opinions Is the director of ○○ General Social Welfare Center, operated under entrustment from ○○ District Office by Social Welfare Corporation ○○○○○, eligible for employment insurance coverage? According to Article 2 of the Labor Standards Act, a "worker" is someone who provides labor under a relationship of subordination. The director is appointed and dismissed by the corporation via a labor contract, receives orders and supervision from the corporation, and is paid wages accordingly. Personnel appointments and management for other employees are also based on internal rules of the corporation. Therefore, a subordinate relationship exists between the director and the corporation, making the director eligible for employment insurance. Under general guidelines for managing social welfare facilities, the head of such a facility is considered an employer if the facility is not operated by a corporation, or the business operator if it is. Since the director is listed as the business owner on the registration certificate and exercises representative authority, they should be seen as the facility head who operates the welfare center and thus be excluded from employment insurance coverage. Opinion A is deemed appropriate.
29.□ Factual Background Company A, located in ○○-dong, ○○ District, has been operating an e-commerce business since November 1, 1991. The business is run by the owner H (male, age 45), his wife 甲 (female, age 41), and his elder sister 乙 (female, age 55, living separately), with 1–2 additional employees occasionally employed, totaling a workforce of 4–5 people at any given time. H’s wife, 甲, acquired employment insurance coverage on January 3, 2001, but her qualification was terminated on December 31, 2008 (the same applies to her National Pension and Health Insurance enrollment). She submitted an application for unemployment benefit qualification to our center on April 24, 2009. Upon confirming with the representative H (her husband) via phone, submitted documents, and a written Q\&A form, he asserted that he formally hired 甲 through an interview and a written employment contract. She allegedly worked the same hours and under the same conditions as other employees, performing clerical support tasks under his supervision, and was forced to resign due to business hardship. Documents submitted to prove the employment relationship with 甲 include a 2008 wage ledger, employment contract, wage and tax withholding statement, and resume. However, he claimed that all wages were paid in cash and was unable to provide supporting documents such as bank account records. Given the above, the question is whether 甲''s employment insurance coverage should be recognized to allow her to receive unemployment benefits. “If it can be clearly proven through documented evidence that the person was enrolled in the National Pension or Health Insurance as a workplace member, had wage income reported to the National Tax Service, and was promised or paid wages on a regular basis, then employment insurance coverage may be recognized.” (from: *Guidelines on Managing Employment Insurance Eligibility for Co-residing Family Members Employed by Employers* (Employment Services Support Division-1626, June 30, 2008)) Since 甲 was enrolled in the National Pension and Health Insurance, had wage income reported to the National Tax Service, and had a written employment contract indicating regular wage payments, her employment insurance eligibility should be recognized. “Social convention views spouses as either co-business operators or financially interdependent partners, not as workers providing labor under the supervision and control of the employer in exchange for wages. Thus, any compensation received is more akin to household support than wages.” (from: *Official Inquiry Response* (Insurance Operations Support Team-963, February 14, 2006)) An employment contract, wage ledger, workplace registration for National Pension and Health Insurance, and tax filings alone are insufficient to prove a subordinate working relationship, and employment insurance coverage should not be recognized. Opinion B is deemed appropriate.
28.□ Background Following the implementation of the Long-Term Care Insurance for the Elderly on July 1, 2008, our district office has received numerous inquiries and complaints from local care institutions regarding the denial of employment status for care workers. – An average of 4–5 calls per day, each requiring over 30 minutes of explanation. – Based on responses from the Working Conditions Supervision Division and case examples from labor inspectors, employment status for *home care workers* has been denied, and enrollment in employment insurance has been withheld. □ Issues Discrepancies in authoritative interpretations between the Ministry of Labor (denying employment status) and the Ministry of Health and Welfare (acknowledging employment status) are causing confusion regarding enrollment. – While the Ministry of Health and Welfare continues to encourage enrollment in the four major insurances, employment insurance enrollment is withheld or rejected based on employment status determination. – For national pension and health insurance, eligibility is determined based on age and average scheduled working hours (80 hours), but under Article 3(1) of the Enforcement Decree of the Employment Insurance Act, excluding workers employed under 15 hours for subsistence purposes from employment insurance coverage is difficult. – Employment status cannot be judged from electronically filed reports via EDI, ei, and the 4-insurance portal due to automatic overnight registration. Differences in criteria among regional offices are also fueling complaints. – According to phone checks with five regional employment insurance registration officers (e.g., Seoul): * A Center: Recognizes only those with attached employment contracts. * B Center: Treats part-time as daily workers and others as regular workers. * C Center: Registers without confirming work form if average working hours exceed 15 hours. □ Case Examples ○○ Phil Nursing Hospital (○○1-dong, ○○ City) – ○○○: Average scheduled working hours: 60 (24-hour shift with next-day rest), employed since Dec. 1, 2007, monthly income approx. KRW 1.2 million (received per patient basis, supplemented by hospital, income tax withheld). ※ Initially not enrolled in four major insurances due to denial of employment status but was registered on Sept. 10, 2009, after the employee threatened to report the employer for non-payment of severance pay. ○○○○ Home Care Dispatch Center (○○-dong, ○○ City) – △△△: Scheduled hours: 8 per week (2–3 visits per week, 3 hours per visit), hourly wage KRW 7,500, visits arranged by the center, contract signed. ○○○○○ Independent Living Center (○○-dong, ○○ City – similar in nature to care providers) – ○○○: Disability assistant, scheduled hours: 40 per week, hourly wage KRW 8,000 (voucher-based, monthly settlement minus 25% service fee). ※ Workers may refuse assigned patients (due to distance or personal reasons), in which case they are reassigned or remain on standby. ※ If they fall short of the scheduled hours, the hours are rolled over to the next month. Other Notes – The Ministry of Health and Welfare instructed (by official letter end of Sept.) that workers with 80+ hours per week be enrolled in all four insurances, and those with fewer hours be enrolled only in employment and industrial accident insurance. – Initial contracts promise 80+ weekly hours, but hours may drop due to patient death or cancellation, complicating insurance handling. – Some care workers serve multiple institutions (based on skill level). – Some institutions deduct 3.3% from payment received from patients before paying workers. – Even those caring for their parents are enrolled if they work 80+ hours/month, although there are questions on whether this constitutes employment. – Institutions face difficulties when trained workers voluntarily resign before completing the contract period. – Some institutions, following Ministry of Health and Welfare guidelines, forcibly enroll care workers in all four insurances. – Many care workers prefer not to be enrolled in all four insurances due to difficulties with management and irregular breaks (leading to severance pay issues). □ Arguments by Care Institutions They argue that employment status should be recognized because: ① Employment contracts are signed, ② Patients are assigned by the institution, ③ Specific duties (bathing, care, etc.) are designated, ④ Only certified personnel may perform the tasks and cannot subcontract others, ⑤ Scheduled working hours are set and changes require approval, ⑥ Income tax is withheld, ⑦ Work logs are submitted to the National Health Insurance Corporation, and ⑧ Enrolled in national pension and health insurance. □ Inquiry Most home care workers are affiliated with specific institutions and perform home care tasks on an hourly basis. Aside from differences in working hours and pay, the duties are largely identical. There is no fixed start and end time; if workers fulfill their scheduled hours per the contract, monthly wages are paid (with 25% service fee or 3.3% tax deduction). However, workers may refuse clients or change working hours, unlike regular employees. – In this context, can home care workers be recognized as employees? – ① If yes, can they be enrolled in employment insurance without restriction on scheduled hours? ※ Concern over whether subsistence-purpose workers under 15 hours/week can be enrolled ※ Due to frequent work gaps, recognizing them as regular workers is problematic (may be more appropriate to treat as daily workers). – ② If not recognized, will headquarters issue uniform administrative guidelines? ※ Secondary problems may arise due to automatic registration in electronic reporting systems.
27.□ Summary of Inquiry A was registered as a director of the 00 Mansion and Commercial Building Reconstruction Association on November 11, 2005, and was elected as a full-time executive (general affairs officer) during the management disposition held on October 6, 2005 (the president and general affairs officer were elected in rotation from the commercial and residential sectors). He was paid KRW 1.5 million per month (expenses supported from March 2006), and was enrolled in employment insurance as of July 1, 2006. * However, due to the contractor’s bankruptcy (expense support was suspended in December 2007; bankruptcy occurred on January 3, 2008), support was cut off, and due to internal issues, no successor was elected. A new executive board was formed at the general meeting of representatives on September 1, 2009, leading to a dispute between A and the association over the termination date of A’s employment insurance coverage. * The association claims the termination date is December 2007 when the term expired and expense support ceased, while A argues that although payment was suspended and the term expired, no successor was elected, and therefore, his term continued until a new general affairs officer was elected at the general meeting on September 11, 2009. * In August 2008, a VAT refund was received, but A and the president allegedly used it as back pay without convening a general meeting. The association claims it will take legal action to recover this. * The general meeting of representatives, which is empowered to decide appointment, dismissal, salary, and duties of executives (as stipulated in the bylaws), resolved that A’s salary payments ceased after the bankruptcy. Given the conflicting claims, the question arises as to whether A qualifies as a worker under the law. □ Related Materials and Bylaws * \[2003-103 Decision on Employment Insurance Eligibility Denial Appeal] Determined that the claimant, although having received remuneration as a general affairs officer of a reconstruction association, was not under an employment relationship due to lack of direction/supervision and nature of remuneration. * \[Labor Standards Act Interpretation No. 68207-527, Apr 29, 2003] Determined that fixed remuneration received by a full-time registered executive of a housing redevelopment association is not deemed wages under the Act. * \[Employment Insurance Casebook, 1995–2005] Determined that even if registered as a joint operator, the representative of a redevelopment association cannot be considered unemployed without formal resignation or business suspension. * Bylaws of the Reconstruction Association: Article 17(1) states that only full-time executives and paid staff may receive salaries per the association''s salary regulations approved by the general meeting. □ Review Opinions A, though elected and paid as a full-time executive (general affairs officer), held a position equivalent to a co-operator as a registered director. The rotating selection of president and general affairs officer from the commercial and residential sectors and related precedents suggest that fixed compensation cannot be regarded as wages, and therefore A does not qualify as a worker. A performed duties under the president’s instructions, and his compensation was provided per bylaws. The fact that remuneration discussions were held multiple times in the general meeting suggests that under the changed circumstances, he may be regarded as a worker. Opinion A is appropriate. * Though A claims to have worked under the direction of the president, the rotating election system makes it hard to view this as a superior-subordinate relationship. * Compensation for full-time executives per the bylaws cannot be regarded as wages in a labor relationship, considering the association members are property owners collectively operating to protect their property.
26.□ Summary of Inquiry Whether “Safe Learning Guardians” (Baeumteo Jikimi), who are deployed to schools by the Ministry of Education, Science and Technology and metropolitan/provincial education offices to prevent school violence, can be regarded as “workers” under the Labor Standards Act. □ Relevant Facts about “Safe Learning Guardians” Purpose of deployment: To prevent and eliminate school violence and support student guidance and character education at each school. Selection method: * Selected and appointed by school principals based on school circumstances and the opinions of the school community. * Qualifications: Retired teachers, retired police officers, discharged military personnel, social workers, youth counselors, or others recognized by the school, excluding those falling under disqualification criteria. Roles: * Patrol within and around school premises during vulnerable times and in vulnerable areas * Assist in preventing school violence and providing character guidance * Provide counseling for students involved in school violence or maladjustment * Guide students during school arrival/departure, ensure traffic safety, and monitor school gates * Coordinate with nearby relevant institutions * Perform other student guidance assistance tasks Working days and hours: * Average of 20 days per month (100–200 days per year depending on education office) * Activity hours: Up to 8 hours per day, depending on school circumstances Allowance: KRW 30,000 per day ※ For details, refer to the attached “Operational Plan” and “Worker Status Q\&A Document” Operational Plan for the Safe Learning Guardian Deployment Program Background: ◦ Deploy Safe Learning Guardians to schools in poor or harmful environments to prevent school violence in advance. * Guide student arrivals/departures and patrol schools during vulnerable times. * Provide guidance and protection for perpetrators and victims of school violence. Progress: ◦ Feb. 28, 2005: Proposal by local police agency to local education office ※ Pilot project named “School Police” conducted in 7 schools ◦ Nov. 2005: Ministry of Education pilot project launched in 70 schools (KRW 1.4 billion in special education subsidies) ※ Name changed to “Safe Learning Guardian” ◦ 2006: 200 guardians deployed in 100 schools nationwide ◦ 2007: 702 guardians deployed in 674 schools ◦ 2008: Program expanded to 1,716 schools (co-funded by education offices and local governments) ◦ As of Mar. 31, 2009: 2,434 guardians deployed in 2,420 schools Deployment Status (as of Mar. 2009): | Category | Schools | Elementary | Middle | High | Total Guardians | Retired Police | Retired Teachers | Counselors/Experts | | -------- | ------- | ---------- | ------ | ---- | --------------- | -------------- | ---------------- | ------------------ | | National | 2,420 | 810 | 988 | 622 | 2,434 | 1,366 | 570 | 498 | Q\&A on the Worker Status of Safe Learning Guardians 1. How are Safe Learning Guardians selected? * Appointed as volunteers by the school principal * Personnel include retired teachers, police officers, military personnel, counselors, social workers, local community members, etc. 2. Is a labor contract signed with the education office? * No separate labor contract; appointed as volunteers by the school principal 3. Who determines the content of the guardians’ activities? * Based on education office guidelines, adjusted per school circumstances by the principal 4. What are the job duties and titles of guardians? * Volunteer * Patrol inside/outside school, guide traffic, counsel maladjusted students * Support prevention and protection of school violence perpetrators and victims 5. What are the working hours and actual attendance details? * Working hours: Up to 8 hours/day, adjusted by agreement with the school * Actual working days: Approximately 20 days/month (up to 180 days/year) 6. Are there cases of extended work? * Generally limited to 180 days, but extensions possible depending on school circumstances 7. What are the workplace, travel methods, and measures for tardiness or absence? * Workplace determined through consultation with the school principal * No business travel * No formal sanctions for tardiness or absence; activity allowance is not paid in such cases 8. What procedures are required for early leave or vacation? * None, as it is a volunteer activity 9. Are there any applicable collective agreements, work rules, or personnel policies? * No collective agreement or personnel rules * Generally follow volunteer guidelines rather than formal work regulations 10. Are there regulations on leave, weekly holidays, or severance pay? * None 11. What is the allowance amount and how is it calculated? * KRW 30,000/day (for lunch and transport), about 8 months/year * Payment timing varies by school and region 12. How and when is the allowance paid? * In principle, paid daily; varies by school and region 13. Are additional (overtime/holiday) allowances paid? * No additional allowances 14. What materials are required and who owns them? * Required: Name tags, whistle, uniforms (winter jackets) * Ownership: School 15. Can others substitute for guardians? * Mother School Police, Patrol Moms, and Silver Police operated as volunteer substitutes in some regions 16. Are they enrolled in social insurance (NPS, NHIS, Workers’ Comp)? * No, as they are volunteers 17. Are income taxes withheld? * No, since they are volunteers □ Opinions Safe Learning Guardians perform volunteer work, have no labor contract, are not sanctioned for tardiness/absence, and have no formal procedures for early leave or vacation. They are not under the direct and concrete supervision of education offices or school principals, and thus should be regarded as volunteers, not workers. The daily allowance exceeds actual transportation and meal costs, making it closer to wages than mere reimbursement. Guardians must keep logs and comply with operating guidelines set by the education office and school. These conditions indicate provision of labor in a subordinate relationship and thus qualify them as workers.
25.□ Inquiry Summary Whether the full-time directors and auditors (registered in the corporate register) of △△△△△ are eligible for employment insurance coverage (i.e., whether they qualify as workers under the 「Labor Standards Act」).
24.□ Inquiry Details Regarding the eligibility for employment insurance coverage of third-year vocational high school students under the age of 18 working (interning) at the △△ factory of ○○ Industries Co., Ltd. within the jurisdiction of our local office, it was previously determined that their field training, conducted as part of their curriculum under their student status at schools conducting industrial education, constitutes an extension of academic activities and therefore does not qualify for insured status. However, these interns, despite being under 18 and still enrolled in high school, have signed employment contracts, work under the same supervision as other employees at the factory, have designated work hours and work locations, are subject to the company''s rules of employment, and thus assert that they should be recognized as eligible for insured status. Company Information: ▫ Name: ○○ Industries Co., Ltd. △△ Factory ▫ Representative: ○○○ ▫ Industry: Cotton Spinning ▫ Address: ○○-dong ○, ○○-gu, ○○ City Relevant Facts: ▷ Standard Field Training Agreement ▫ Training period: From date of employment to graduation or until February 28, 2011 ▫ Working hours: 8 hours per day in principle ▫ Training stipend: KRW 32,880 per day (paid on the 5th of every month) ▫ Management: In accordance with the Vocational Education and Training Promotion Act, the Labor Standards Act, and company rules of employment ▫ Evaluation: Varies by school ▷ Employment Contract ▫ Contract period: Not specified ▫ Working hours: 8 hours per day in principle ▫ Wages: KRW 32,880 per day (with base pay, income tax withheld) ▫ Management: In accordance with company rules and the Labor Standards Act Key Issue: According to the *Employment Insurance Manual on Worker Determination*, interns should be evaluated comprehensively, regardless of titles such as training, internship, or probation, considering whether an employment contract exists, whether labor is provided for the purpose of wages, and whether the work conditions are similar to regular employees. However, it also clearly states that so-called "2+1" trainees (who intern for one year as third-year students at vocational high schools) are not considered workers. In this case, the students are required by their school curriculum (under the Vocational Education and Training Promotion Act and the Rules on Field Training at Each Level of School) to complete field training at industrial sites, but unlike "2+1" trainees, they are not engaged for an entire year. They work under the same conditions (wages, hours, duties) as other employees, potentially qualifying them as workers under the Labor Standards Act. Although the interns are under 18, the school recommends students who wish to find employment (instead of attending college), and the company signs employment contracts for the purpose of continued employment. The job duties are determined within the company’s scope of work, and the interns are supervised by team leaders. Working hours and attendance are set identically to other employees in the contract, with base wages, social insurance registration, and income tax withholding. Company rules, including disciplinary actions, apply. Therefore, it is reasonable to recognize them as insured persons. The interns are vocational high school students dispatched to the workplace under the school’s training plan. Their duties are part of their educational program, not performed for the purpose of earning wages. Although employment contracts were signed, the *Standard Field Training Agreement* also exists, designating them as interns until graduation. While they are supervised by company staff, school teachers sometimes visit the company or provide guidance by phone. Attendance at the workplace counts as school attendance. Even though grades are not directly tied to work evaluations, students dismissed before graduation return to school, and many interns do not complete their term. Thus, continued employment is not assured, and insurance eligibility should not be recognized. Local office opinion: Opinion B
23.□ Inquiry Details Foreign workers from Sri Lanka (5 persons) and Nepal (3 persons), currently employed at agricultural sites in ○○-myeon, ○○-gun, were introduced under the Employment Permit System and possess E-9 visas. While these workers are registered under national health insurance and industrial accident insurance, they are not enrolled in employment insurance. Agricultural work is recognized under the Employment Permit System as one of the permitted industries for foreign workers, and these individuals entered the country with legitimate employment contracts via a foreign worker dispatch agency and the Human Resources Development Service of Korea. The local labor office stated that the workers are excluded from employment insurance eligibility because their work sites (i.e., individual farms) do not have five or more employees. However, this ruling appears inconsistent with the intent of the Employment Permit System, which allows foreign workers to be hired regardless of company size. In reality, these foreign workers are laborers who receive wages and work under the command and supervision of employers, just like other employees. However, despite paying contributions for health and industrial accident insurance, they are not permitted to enroll in employment insurance, leading to concerns over fairness and equity. Therefore, we seek confirmation on whether these E-9 visa foreign workers can obtain employment insurance coverage, regardless of the number of employees at their place of employment.
22.□ Overview <1> Workplace Overview Location: ○○ Building, ○○ Villa, ○○-dong, ○○-gu, ○○ City □ Key Question ○○ Building, part of ○○ Villa with four households, hired a security guard to handle external cleaning and security duties. Each household paid their share of the monthly wage directly to the guard. However, after one household entered foreclosure and became unable to contribute, the residents agreed to discontinue the guard’s employment. Upon being asked to leave, the guard △△△ filed a claim requesting verification of employment insurance enrollment, termination, and separation handling. In response, the representative employer ○○○ objected, arguing that employment in a villa does not constitute grounds for coverage under the four major social insurances. Thus, the inquiry concerns whether this place of employment constitutes a "business or workplace" under the Employment Insurance Act. □ Hiring Background and Working Conditions Hiring Method: Hired through an acquaintance of the representative employer ○○○ after an interview, with working conditions such as working hours, wages, and holidays agreed upon verbally Duties: Patrol around the villa, parking guidance, controlling door-to-door salespeople, managing mail, cleaning, and sorting waste Work Conditions: Work Period: October 20, 2010 – July 15, 2011 7 hours/day, 6 days/week (off on Sundays) Work Hours: 08:00–17:00 (lunch break from 12:00–13:00) Wages: KRW 810,000/month (Oct 20, 2010 – Jan 31, 2011), KRW 1,040,000/month (Feb–Jul 2011), divided and paid by each household No registration for four major insurances; no withholding of income tax Purchase of Supplies: A fixed monthly payment of KRW 30,000 was provided for cleaning supplies and garbage bags □ Opinions : The residence is not a business or workplace Article 8 of the Employment Insurance Act states the Act applies to all businesses or workplaces that employ workers. A "business or workplace" refers to continuous operations conducted as a business within an organized structure at a designated location. Since the four households at ○○ Villa simply shared the costs for security and cleaning, this lacks the continuity and organization required to qualify as a "business or workplace." : The residence is a business or workplace Since the guard submitted a resume, was hired through an interview, worked set hours Monday through Saturday with Sundays off in a designated guard office, and was paid a fixed amount monthly, this constitutes a business or workplace. Regional Labor Office Opinion: Opinion A
21.□ Facts and Inquiry Details The ○○ Regional Office received employment insurance enrollment reports for third-year vocational high school students under 18 working (interning) at ○○ Industrial Co., Ltd. △△ Plant. The office initially responded that such on-site training should be regarded as an extension of academic coursework for students dispatched by vocational schools under their curriculum, and thus these students could not be recognized as insured persons. However, although the interns are high school students under 18, they: * signed employment contracts, * work under the same supervision and control as regular employees at the workplace, * have fixed workplaces and working hours, * are subject to the company’s rules of employment. Based on this, the interns assert their eligibility for insurance and request a review. A. Workplace Overview * Business name: ○○ Industrial Co., Ltd. △△ Plant * Representative: ○○○ * Industry: Cotton spinning * Location: ○○-dong, ○○-gu, ○○ City B. Facts On-site Training Standard Agreement: * Training Period: From date of hire until graduation or until February 28, 2011 * Working Hours: 8 hours/day as a principle * Training Allowance: KRW 32,880/day (paid monthly on the 5th) * Personnel Management: Pursuant to the Vocational Education and Training Promotion Act, the Labor Standards Act, and the company’s internal rules * Evaluation of Training: Varies by school Employment Contract: * Duration: Not specified * Working Hours: 8 hours/day as a principle * Wages: KRW 32,880/day (includes base salary; income tax withheld) * Personnel Management: In accordance with company rules and the Labor Standards Act C. Points of Dispute The “Guidelines on Insured Person Management” state that in the case of interns, regardless of whether they are called trainees, apprentices, or interns, the status as a worker must be judged based on: * whether an employment contract exists, * whether the person provides labor for the purpose of earning wages, * whether the form of employment is similar to that of other workers. However, the manual also clearly states that students participating in one-year internships at businesses under the so-called "2+1" system in vocational high schools are not considered workers. In this case, the interns are vocational high school students dispatched to workplaces under their schools’ annual training plans in accordance with the Vocational Education and Training Promotion Act Article 7 and the “Regulations on Operation of School-Based Field Training,” Article 2. However, unlike the “2+1” trainees, these students are not working for a full year. They receive the same wages, work hours, and duties as regular employees, and may be deemed workers under the Labor Standards Act. Thus, the key issue is whether they should be recognized as insured persons. Although the interns are under 18 and enrolled in high school, they applied through their school for employment rather than university admission. They were hired for continued employment, had duties assigned within the company''s job scope, were supervised by team leaders, had designated working hours and locations, received base pay, were eligible for social insurance, had income tax withheld, and were subject to the company’s rules of employment. Therefore, they should reasonably be recognized as insured persons. These students are dispatched to the workplace according to the school’s training plan and are engaged in academic activities, not working for wages. Despite having employment contracts, the fact that they also signed the “On-Site Training Standard Agreement” indicates they should be considered interns until graduation. Though they work under team leaders, school instructors visit or contact the site for student supervision, attendance at the workplace is linked to school attendance, and if they resign, they return to school. Many interns leave before graduation, so continuous employment cannot be presumed. Therefore, they should not be recognized as insured persons. Regional Office Opinion: Opinion B
20.□ Facts and Inquiry Details The following are the relevant provisions of the guidelines on the imposition of administrative fines for failure to report employment insurance insured status: | Violation | Criteria for Determination | Fine Amount | | -------------------------------------------- | ----------------------------------------------------------- | ----------- | | Willful failure to report or false reporting | - In cases of non-reporting (excluding negligent reporting) | | * In cases of reporting contrary to the facts | KRW 80,000 per insured person | The criteria for determining absence of intent or negligence under the above guideline are as follows: A. In cases of misreporting, the employer is not considered to have acted with intent or negligence and no fine is imposed if: * There is a clear reason that could reasonably cause a misunderstanding of the reporting item, such as the date of acquisition or reason for termination, * The error was due to a system malfunction. B. In general, misreporting is considered false reporting, and a fine is imposed unless the employer proves there was no intent or negligence, in which case it may be exceptionally recognized as an honest mistake. Among the employment insurance insured status correction request forms received by the center, one was initially reported with the reason for termination as “personal reasons,” but was later corrected to “layoff at the employer’s recommendation.” Upon verification, “layoff” was confirmed to be the actual reason. There is disagreement over whether this case is subject to an administrative fine, leading to the following opinions: Reporting the reason for termination as “personal reasons” when the actual reason was “layoff” does not fall under a category where misunderstanding is reasonable. Therefore, it constitutes false reporting and is subject to a fine. Although the reason for termination was initially reported as “personal reasons,” the employer voluntarily corrected the report upon recognizing the mistake. Since “layoff” was confirmed as the actual reason and no administrative action (such as unemployment benefit processing) occurred based on the original report, there is no evidence of intent or negligence, and thus it does not constitute false reporting and should not be subject to a fine. (Local Office Opinion: Opinion A)
19.□ Key Inquiry Whether it is appropriate to impose an administrative fine for delayed reporting of employment insurance qualification for security guards (chungwon police) belonging to national or local government agencies, which were reported outside the “Special Reporting Period for Encouraged Registration of Chungwon Police” in April 2010 under the Government Employees Pension Act. □ Relevant Facts Three security guards, including ○○○, employed by a local government-affiliated agency under this district office, submitted employment insurance insured qualification acquisition forms by fax on February 15, 2011. Their respective dates of hire were February 6, 1990; January 1, 1995; and July 21, 1997. However, the agency in question reported the acquisition date as February 15, 2008, by retroactively applying the 3-year limit under Article 50(5) of the Employment Insurance Act. The agency claimed it had not been informed about the “Special Voluntary Reporting Period” for chungwon police in April 2010 and failed to report within the grace period. They became aware of the omission only during the 2011 compensation total amount reporting process. □ Inquiry Points and Opinions Whether the delayed reporting of the three security guards'' acquisition of employment insurance is subject to an administrative fine under Article 15 and Article 118 of the Employment Insurance Act and Article 146 (Appendix 2) of its Enforcement Decree as “failure to report.” Under Article 19 of the Framework Act on Administrative Regulations for Minor Offenses, “Administrative fines may not be imposed for violations more than 5 years after the date the violation is completed.” Thus, when does this five-year period begin in this case? Although there has been no provision in the Employment Insurance Act or its Enforcement Decree since its enactment (December 27, 1993) explicitly excluding chungwon police from coverage, the agency failed to fulfill its obligation to report, relying on an arbitrary interpretation. Therefore, the agency violated Article 15 of the Act. However, the violation (i.e., “failure to report”) is deemed to have occurred on the day following the legal deadline for reporting. This must be calculated based on each individual''s date of hire and the applicable rules at that time. In all three cases, more than five years have elapsed. Thus, under Article 19 of the Framework Act on Administrative Regulations for Minor Offenses, since the five-year statute of limitations has expired, fines should not be imposed. ※ According to the 2010 Ministry of Justice casebook on the Act, if a deadline is specified for a report, the five-year period begins the day after the deadline. While the agency did violate Article 15 of the Employment Insurance Act, the “date the violation was completed” in this case is considered the date the insurance acquisition report was received (February 15, 2011), so the five-year period has not expired, and the fine should be imposed. (Local Office Opinion: Opinion A) ※ If Opinion B is deemed valid and the start date for calculating the five-year period differs, please provide clarification on how the start date is determined. 【Reference】 Administrative interpretation on the statute of limitations for administrative fines under the Construction Machinery Management Act: If an address change is not reported within 30 days as required, the 31st day is considered the start of the violation, and the five-year statute of limitations begins from that date.
18.□ Background of the Inquiry △△ Construction Co., Ltd., under the jurisdiction of the center, submitted a “Confirmation of Daily Worker Employment Details” form for six daily workers including ○○○ on February 7, 2011, but mistakenly reported it as for August 2010 instead of January 2011. * On March 4, 2011, the company requested a correction, stating that the HR officer reused a previously saved August 2010 form template and failed to update the “reporting month” field at the top when entering the January 2011 data. The center verified that the mistakenly reported August 2010 workdays for the six daily workers matched the actual January 2011 payroll. □ Inquiry Point Even if the mistake is acknowledged as a simple clerical error by the HR officer, does it still constitute “negligence” under the category of “false reporting” and thus warrant an administrative fine? ※ In similar cases, most local labor offices reportedly impose fines on the basis of negligence. Employment Insurance Insured Status Reporting Fine Guidelines (effective January 1, 2011): “In cases of false reporting, a fine shall be imposed in principle. However, if the employer proves absence of intent or negligence, the case may exceptionally be recognized as a clerical mistake and the fine may be waived.” □ Opinions Although △△ Construction Co., Ltd. reported the January 2011 employment details as August 2010, * i) Verification of the payroll records for both August 2010 and January 2011 showed that the six workers including Kim ○○○ did not work at the company in August 2010. * ii) No fraudulent receipt of unemployment benefits was detected. Therefore, the mistake should be regarded as a clerical error, not a violation of Article 15 of the Employment Insurance Act, and no fine should be imposed. ※ If administrative fines are imposed for simple input errors, employers may avoid correcting inaccurate reports out of fear of penalty, resulting in unreliable data. According to the Employment Insurance Fine Guidelines, only if the employer proves the absence of negligence will the fine be waived. - In this case, the report filed by △△ Construction Co., Ltd. was clearly inaccurate, and since negligence was involved, the fine should be imposed. (Local Office Opinion: Opinion A)
17.□ Inquiry Details At △△△ Co., Ltd., a workplace under the jurisdiction of the center, the reason for the resignation of a departing employee (○○○) was initially reported as “dismissal upon recommendation.” However, upon receiving a correction request (from “dismissal upon recommendation” to “personal reasons”), the center processed the correction. While reviewing the imposition of a fine (KRW 2,000,000) for reporting false resignation reasons, it was revealed that the initial report had been submitted arbitrarily and incorrectly by a tax agent without confirmation from the employer. Therefore, we seek your opinion on whether imposing a fine on the company in this case is appropriate. □ Opinions Even if the tax agent, who was handling employment insurance reporting for the company, arbitrarily submitted the resignation reason without fully verifying the facts with the employer, the act of submission, bearing the company’s seal, is considered as an act of the company. Hence, it is appropriate to impose an administrative fine. If the tax agent submitted the resignation report arbitrarily without confirming the facts with the employer, it exceeds the scope of delegated authority and cannot be recognized as valid. Since the employer was unaware of the misreporting, the employer is not at fault, and imposing an administrative fine would be unjust. (Local Office Opinion: Opinion A)
16.□ Facts and Inquiry Details Business Information | Item | Content | | ------------------------------------------------- | ------------------------------------------------ | | Company Name | ○○○○ Co., Ltd. | | Representative | ○○○ | | Workplace Management No. | ×××-××-×××××-× | | Industry | Manufacture of orthopedic and prosthetic devices | | Address | ○○-dong, ○○-gu, ○○ City | | Phone Number | ×××-×××-×××× | | Number of Regular Employees (Currently Insured) | ○ persons | | Operational Status (Insurance Establishment Date) | In operation (since 2007.9.1) | Insured Employee Information | Item | Content | | ---------------------------- | --------------------------------------------- | | Name | ××× | | Resident Registration Number | ××××××-××××××× | | Insurance Acquisition Date | 2007.9.1 | | Insurance Termination Date | 2010.3.1 | | Termination Reason | 15. Personal reasons | | Job Type | Other health/medical occupations (technician) | Progress ① 2010.03.09 – Insurance termination report for employee ○○○ received (Reason: 15. Personal reasons) ② 2010.04.12 – Correction request received to change termination reason (from 15. Personal reasons → 32. End of contract) ③ 2010.04.21 – Correction processed; the handling officer at the time mistakenly processed the request as 32. End of contract despite the employment period exceeding two years, due to unfamiliarity with the Act on the Protection of Fixed-Term and Part-Time Employees, and after confirming with the company’s employment insurance officer that re-contracting was refused ④ 2010.04.21 – Employee ○○○ applied for unemployment benefits ⑤ 2010.04.27 – Separation notice received from the company ⑥ 2010.11.26 – Company submitted documents related to employment stabilization subsidies, but was informed that employees whose contracts exceeded 2 years are ineligible; later, the subsidy official verbally informed the insured status officer that the reason should be corrected from Code 32 (End of contract) to Code 25 (Resignation due to company reasons), and the company’s employment insurance officer was contacted and guided accordingly. ⑦ Around Dec. 2010 – Company was informed that due to a resignation coded as 25, it was ineligible for youth internship subsidies ⑧ 2011.01.03 – Company submitted another correction request, claiming the original reason (15. Personal reasons) was correct □ Two Opinions on Fine Imposition The initial termination reason of “15. Personal reasons” was processed based on trust in the company’s report. However, the company later submitted a correction request to change the reason to “32. End of contract” and that request was false. Thus, the company violated Article 15 of the Employment Insurance Act, and fines should be imposed: * KRW 80,000 for false termination report (②) * KRW 2,000,000 for false separation notice submission (④) * Total fine: KRW 2,080,000 The initial report (①) was not false. The corrections submitted at steps ② and ⑧ were accompanied by reasonable justifications for the changes. Therefore, if the first report was legitimate, a fine cannot be imposed for legal violations. (Local Office Opinion: Opinion B) * A correction request is supplementary documentation to cancel or amend the acquisition/termination date or reason. It is not, in itself, a legally mandated action. * Fines apply only if the original disposition (e.g., termination reason) was false, regardless of the number of correction attempts. * Thus, Opinion B is valid.
15.□ Factual Background The employer of Hospital A within the jurisdiction reported both the loss of insured status and the separation of a retired employee, Mr. A (hereinafter referred to as “Mr. A”), on the same day (Feb. 7, 2011), stating the reason for the loss of insured status as “personal reasons,” even though the actual reason was “recommended resignation.” Subsequently, the employer submitted a correction report regarding the termination reason, and after fact-finding, our center confirmed that the actual reason for Mr. A’s resignation was “recommended resignation,” and corrected both the insured status loss and separation reason accordingly. □ Inquiry Point In the case where the employer of Hospital A reported the reason for Mr. A’s loss of insured status and separation on the same day as “personal reasons” but later submitted a correction reporting “recommended resignation,” can this be considered as a concurrence of two separate administrative violations under Article 13(2) of the Act on Regulation of Violations of Public Order, thereby imposing separate fines for each violation? □ Relevant Legislation Employment Insurance Act Article 118 (Administrative Fines) ① A fine of up to KRW 3 million shall be imposed on any employer, representative or agent of an agency handling insurance affairs, or any of its employees, who: Fails to file a report or files a false report in violation of Article 15 Fails to submit or submits a false separation notice in violation of Article 16(1) Fails to issue a separation notice in violation of the latter part of Article 16(2) Enforcement Decree of the Employment Insurance Act Article 146 – Fines under Article 118(1)–(3) are imposed according to the standards in Attached Table 2. The Minister of Employment and Labor may adjust the fine by up to 50%, depending on the severity, motive, and consequences of the violation. Attached Table 2 – Fine Standards by Type of Violation Violation Law Fine Amount Failure to report or filing of a false report under Article 15 Article 118(1)1 a. Habitual – KRW 100,000 per employee (max KRW 3,000,000) b. Intentional – KRW 80,000 per employee (max KRW 2,000,000) c. Negligent – KRW 50,000 per employee (max KRW 1,000,000) | False or unsubmitted separation notice under Article 16(1) | Article 118(1)2 | a. Habitual – KRW 300,000 b. Intentional – KRW 200,000 c. Negligent – KRW 100,000 | Act on Regulation of Violations of Public Order Article 13 (Handling of Multiple Violations) ① If a single act constitutes two or more violations, impose only the most severe fine. ② Except for cases under paragraph ①, if multiple distinct violations are committed (i.e., substantial concurrence), impose separate fines unless other laws specify otherwise. □ Legal Opinions Article 13(1) of the above Act stipulates that when a single act constitutes multiple violations, only the highest applicable fine shall be imposed. – According to the “Unemployment Benefit Fraud Investigation Manual” (Feb. 2011, p.65), the insured status loss report and separation notice for the same employee are to be treated as separate acts. However, if the submission date and violation (e.g., termination/separation reason) are the same, it shall be considered a single act and fined accordingly. Thus, the most severe fine—KRW 200,000 for “false separation notice”—should apply. Article 13(2) allows separate fines for concurrent but distinct violations. – Despite the reports being filed on the same day, they fall under different statutory obligations and deadlines. Therefore, they should be viewed as separate violations of “false insured status report” and “false separation notice,” and a total fine of KRW 208,000 should be imposed. (Local Office Opinion: Opinion A is valid)
14.□ Background and Summary Worker ○○○ joined □□□□ on May 28, 1998, and was later notified in writing on June 9, 2003, of dismissal effective July 9, 2003. On July 22, 2003, the worker filed a remedy application for unfair dismissal with the ○○ Regional Labor Relations Commission (hereinafter “Regional Commission”), but the application was dismissed on October 23, 2003. The worker then filed for reexamination with the Central Labor Relations Commission (hereinafter “Central Commission”) on November 11, 2003, but withdrew the reexamination on May 18, 2004, following a mutual settlement with the employer. * Main contents of the settlement: ① The employment relationship is mutually terminated. ② All pending complaints and criminal reports are withdrawn, and neither party shall engage in actions detrimental to the other party. ③ KRW 6 million shall be paid in recognition of service as a retirement settlement payment. ※ A Central Commission investigator signed the settlement agreement in a personal capacity. Following the settlement, □□ initially reported the date of loss of insured status as July 9, 2003, on May 31, 2004. However, since the eligible benefit period for unemployment benefits was only 12 months, the worker was eligible to receive only a portion of the benefits (KRW 1,110,570 for 33 out of 210 days, totaling KRW 7,067,300). To receive the full amount, the worker, citing the settlement, changed the reported date of separation to May 18, 2004, effectively extending the date by about 10 months. In this case, what should be recognized as the date of separation (i.e., date of loss of insured status) for worker ○○○? ※ 1. Currently, □□ has submitted a second report claiming that the first change of the separation date was made under duress and for the purpose of fraudulent benefit claims. The separation date has now been changed back to July 9, 2003, and the employer has paid the administrative fine. 2. Due to a disclosure request by worker ○○○, the document titled “Notice of Change to Employment Insurance Insured Status (Second Report)” has been made public. The worker is now preparing an appeal related to the recovery of unemployment benefits and is expected to file a civil suit against the hospital. The date of separation refers to the date the employment relationship between the insured and the employer actually ends, such as the date of dismissal. Therefore, July 9, 2003 (the date of dismissal in dispute), should be recognized as the date of separation. If the parties agreed to pay KRW 6 million as retirement (or severance) settlement and subsequently amended the reported separation date, the settlement agreement should take precedence over the initial dismissal and be recognized as the basis for determining the separation date. Opinion A * The worker was actually dismissed on July 9, 2003. * The worker’s unfair dismissal remedy was dismissed by the Regional Commission, and although a reexamination was requested, it was withdrawn and no further legal action was taken. * Therefore, July 9, 2003, when the employment relationship effectively ended, should be regarded as the date of separation. * Recognizing the date of the mutual settlement (May 18, 2004) as the separation date would enable the worker to receive full unemployment benefits and potentially increase the total benefit period, * which would conflict with the intent of Article 39 of the Employment Insurance Act (which limits the benefit period to 12 months) and could lead to abuse and undermine the purpose of the employment insurance system.
13.□ Facts 1. Project Overview Project Name: ○○ Year ○○ District ○○○○ Construction Client: ○○ Provincial Government Prime Contractor: ○○○○ Co., Ltd. Subcontractor: ○○○○ Co., Ltd. Second-tier Subcontractor: ○○ Industrial Development Co., Ltd. 2. Summary of Inquiry and Positions The subcontractor, ○○○○ Co., Ltd., asserts that the contract with ○○ Industrial Development Co., Ltd. is not a construction subcontract but a simple goods purchase and delivery agreement. Therefore, it argues that ○○ Industrial Development Co., Ltd. should report the daily workers. However, the second-tier subcontractor, ○○ Industrial Development Co., Ltd., contends that although the agreement is labeled as a goods purchase and delivery contract (which is common in public procurement), in substance it is a subcontract. Accordingly, it argues that the reporting of daily workers should be carried out by the subcontractor, ○○○○ Co., Ltd. The contract with ○○ Industrial Development Co., Ltd. is a goods purchase and delivery agreement, not a construction subcontract. Therefore, daily workers employed during the manufacturing process of ○○○○ should be reported by ○○ Industrial Development Co., Ltd. Although the contract is titled as a "Goods Purchase and Delivery Agreement," the actual arrangement constitutes a construction subcontract based on the following facts: * The production site is arranged by ○○○○ Co., Ltd. * Rebar and ready-mixed concrete (publicly supplied) are delivered to the site by ○○○○ Co., Ltd. * The formwork used in production is supplied by ○○○○ Co., Ltd. Therefore, the reporting should be done by ○○○○ Co., Ltd. Since the contract between ○○○○ Co., Ltd. and ○○ Industrial Development Co., Ltd. is titled as a “Goods Purchase and Delivery Agreement,” the daily workers actually hired and managed by ○○ Industrial Development Co., Ltd. should be reported under its general workplace management number. Although the contract is titled as a goods purchase and delivery agreement: - The production site is provided by ○○○○ Co., Ltd., and materials such as rebar, ready-mixed concrete, and formwork are supplied by ○○○○ Co., Ltd. - Inspections are conducted by inspectors from ○○○○ Co., Ltd. - Article 5(2) of the General Terms of the Agreement states: “Party B shall not subcontract to a third party without prior written approval from Party A,” which indicates it is a subcontract, not merely a purchase agreement. - Industrial accident insurance claims are handled by ○○○○ Co., Ltd., and safety management expenses are used under the name of ○○○○ Co., Ltd. Therefore, the employment details should be reported by ○○○○ Co., Ltd. under the subcontractor management number. Opinion B is valid.
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