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jonpurdy
Joined: 08 Jan 2009
Location: Ulsan
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 Posted: Mon Jun 21, 2010 9:57 pm Post subject: Severance Info Verification |
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So I'll be signing my third contract here starting in late Sept. 2010. I took my severance after my first contract (2008.09~2009.09). BUT, I might end up going home in August 2011 (to go back to school), which means my next contract would only be for 11 months.
I told my school not to pay this year's severance. If I don't receive it this year the severance month counter keeps going up, right? So when I leave in August 2011 I'll have 23 months of severance, correct?
If they somehow insist on paying severance can I demand or force them to hold it off? (Not that this will be an issue, they didn't even know about it last year. Just curious.)
I'm aware that I'll lose out on the return airfare, which is fine I guess. Plus my school knows of my potential need to go home a bit early. |
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jonpurdy
Joined: 08 Jan 2009
Location: Ulsan
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| Posted: Mon Jun 21, 2010 10:03 pm Post subject: |
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| Update: they said they can't combine it for next year since my pay scale is different. Anything I can do? Can I refuse it for this year? |
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OculisOrbis
Joined: 17 Jul 2006
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| Posted: Tue Jun 22, 2010 12:24 am Post subject: |
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it doesnt matter if your payscale is different.....it is calculated using the daily average of your last 3 months of work to calculate for the first year and the sam daily rate is used to calculate your prorated severance for the eleven months you worked in your second contract.
there's thread somewhere here in which tomato referenced the legislation regarding the calculation of the yearly bonus. i'll see if i can find it and link it. |
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jonpurdy
Joined: 08 Jan 2009
Location: Ulsan
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| Posted: Tue Jun 22, 2010 5:00 am Post subject: |
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| OculisOrbis wrote: |
it doesnt matter if your payscale is different.....it is calculated using the daily average of your last 3 months of work to calculate for the first year and the sam daily rate is used to calculate your prorated severance for the eleven months you worked in your second contract.
there's thread somewhere here in which tomato referenced the legislation regarding the calculation of the yearly bonus. i'll see if i can find it and link it. |
Thanks for the info. Unfortunately it seems that both the school and the MOE will only pay yearly, regardless of how it's calculated. I assume there's no way to force them to pay at the end of the 23 months? |
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OculisOrbis
Joined: 17 Jul 2006
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| Posted: Tue Jun 22, 2010 3:54 pm Post subject: |
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| nope. if they want, they can pay it yearly. |
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NYC_Gal
Joined: 08 Dec 2009
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| Posted: Tue Jun 22, 2010 4:18 pm Post subject: |
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| It's the difference of a few hundred dollars. It's better to take it now, in case you get scammed later on. Collect and send out of the country ASAP. |
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OculisOrbis
Joined: 17 Jul 2006
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| Posted: Tue Jun 22, 2010 4:48 pm Post subject: |
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| NYC_Gal wrote: |
| It's the difference of a few hundred dollars. It's better to take it now, in case you get scammed later on. Collect and send out of the country ASAP. |
11/12 months prorated severance is almost 2 million. Depending on his salary scale position, it could be a couple hundred thousand over 2 million.
If youre working for a hagwon, yes, absolutely insist on taking it yearly. Even the best job/employer can turn to s*#t overnight.
In the OP's case, it's a public school and he knows he will be leaving early on his second contract. There is little to no worry about getting cheated on severance in a public school so it's best to take it at the end of your employment instead of yearly if your school will allow it - even if you dont plan on leaving early. |
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jonpurdy
Joined: 08 Jan 2009
Location: Ulsan
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| Posted: Tue Jun 22, 2010 5:05 pm Post subject: |
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Thanks all for the advice. If I was at a hagwon I'd take it yearly. I'm at a PS so it's no problem waiting for it.
Unfortunately they won't lump sum it. As it stands now, I'll lose about 3.3 million if I leave three weeks early instead of just 1.3. My co- thinks it's ridiculous but there's nothing she can do either.
I'm going to see if I can move up to a uni. At the same time, I might sign the contract and try to get my VP to give me 11/12 months severance (around 1.8 or 1.9). If not and I leave early, I might as well go before camps (since it's the same penalty whether it's 5 months or 5 days earlier). |
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ontheway
Joined: 24 Aug 2005
Location: Somewhere under the rainbow...
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| Posted: Tue Jun 22, 2010 5:09 pm Post subject: |
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| jonpurdy wrote: |
Thanks all for the advice. If I was at a hagwon I'd take it yearly. I'm at a PS so it's no problem waiting for it.
Unfortunately they won't lump sum it. As it stands now, I'll lose about 3.3 million if I leave three weeks early instead of just 1.3. My co- thinks it's ridiculous but there's nothing she can do either.
I'm going to see if I can move up to a uni. At the same time, I might sign the contract and try to get my VP to give me 11/12 months severance (around 1.8 or 1.9). If not and I leave early, I might as well go before camps (since it's the same penalty whether it's 5 months or 5 days earlier). |
Once you have completed one year of employment, you are entitled to prorated severance for the months thereafter in your final partial year even if you were paid annually for previously completed 12 month periods. |
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NYC_Gal
Joined: 08 Dec 2009
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| Posted: Tue Jun 22, 2010 5:18 pm Post subject: |
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Fair enough. It stinks that they won't let you do it at the end of 23 months.
I take mine yearly in case of emergencies. You never know... |
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jonpurdy
Joined: 08 Jan 2009
Location: Ulsan
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| Posted: Tue Jun 22, 2010 6:19 pm Post subject: |
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| ontheway wrote: |
| Once you have completed one year of employment, you are entitled to prorated severance for the months thereafter in your final partial year even if you were paid annually for previously completed 12 month periods. |
Really? That would be spectacular. Can you provide a source for this (Korean or English)? This would solve the problem completely. |
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OculisOrbis
Joined: 17 Jul 2006
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| Posted: Tue Jun 22, 2010 9:16 pm Post subject: |
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| ontheway wrote: |
| Once you have completed one year of employment, you are entitled to prorated severance for the months thereafter in your final partial year even if you were paid annually for previously completed 12 month periods. |
The labor board may find in your favor, but there's no way the POE will give it up without that fight. The only way to find out is to wait 14 days after your last day of employment and file a labor claim.
The teacher's problem is that each new contract is a new term of employment and the labor board may consider that resetting the clock on severance, as well as not even being covered under the labor standards act if you have less than six months completed in the new term.
Depends of the agent you get at the labor board as to how the rules are interpreted. Roll the dice and file a claim if they dont pay. It doesn't cost you anything if you lose at the hearing.
http://www.scribd.com/doc/17322855/Employee-Retirement-Benefit-Security-Act
BTW you also have up to three years to file a claim so as long as youre planning to return to korea, you can wait until its convenient for you to file the claim. There's no rush. |
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jonpurdy
Joined: 08 Jan 2009
Location: Ulsan
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| Posted: Tue Jun 22, 2010 10:08 pm Post subject: |
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Great link. I found an updated copy on an official site and noticed this:
Notwithstanding the provisions of paragraph (1), an
employer may, in case a worker demands, pay the worker the
amount of retirement pay corresponding to his/her consecutive
service period earlier than his/her retirement. In this case, the
consecutive service period to be used for the calculation of the
amount of retirement pay accumulated thereafter shall be
reckoned anew from the time when the balances were settled.
So based on this, after getting paid my consecutive service period will be reset to zero months. It looks like I'm out of luck. I don't see how I could argue that I should be paid 11/12 months severance.
Ideas? Am I interpreting this correctly? |
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OculisOrbis
Joined: 17 Jul 2006
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| Posted: Wed Jun 23, 2010 12:08 am Post subject: |
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| Yes, your interpretation is correct. |
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ontheway
Joined: 24 Aug 2005
Location: Somewhere under the rainbow...
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| Posted: Wed Jun 23, 2010 7:44 am Post subject: |
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| jonpurdy wrote: |
Great link. I found an updated copy on an official site and noticed this:
Notwithstanding the provisions of paragraph (1), an
employer may, in case a worker demands, pay the worker the
amount of retirement pay corresponding to his/her consecutive
service period earlier than his/her retirement. In this case, the
consecutive service period to be used for the calculation of the
amount of retirement pay accumulated thereafter shall be
reckoned anew from the time when the balances were settled.
So based on this, after getting paid my consecutive service period will be reset to zero months. It looks like I'm out of luck. I don't see how I could argue that I should be paid 11/12 months severance.
Ideas? Am I interpreting this correctly? |
NO.
This regulation has to do with computational proceedure. Yes, you have to reckon "anew[/b] from the time when the balances were settled" in order to determine the correct payment amount. However, the obligation to pay has been established by working past the one year mark. In order to avoid payment, your employer would have to establish that your employment was not continuous, but had a significant gap in time between periods. The use of multiple contracts alone would not establish that. Multiple contracts coupled with a substantial, unpaid return to one's home country might help to establish such a break. However, if you renew your visa with Immigration instead of getting a new visa, then you are extending your period of employment and not starting a whole new period of employment and your employer should be required to pay prorated severance for completed months of service in any partial year following the first whole year.
As a side note, this brings up the point that care should be taken when re-signing for contracts beyond the first year to spell out terms such as when severance and other payments will be made and that severance will be paid in subsequent years based on months of service even if the employee works less than a full year. |
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