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TheUrbanMyth
Joined: 28 Jan 2003
Location: Retired
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 Posted: Mon Feb 20, 2012 9:24 pm Post subject: |
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| YTMND wrote: |
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1. Well, my understanding is that after 1 year, it is prorated and the teacher does not have to finish a second year to get severance pay based on their work during that second year. So it is 1 month's salary plus 1/12-12/12 month's salary.
2. I was never disputing a choice. I was looking at why they would make the choice and how that would negatviely affect the employee where they have no say so in the matter (in theory). We can continue on this if it is not clear why I stated whatever made you reply this way. I don't clearly understand why you brought this up.
3. And the crux of my point on this issue is that it should affect only the amount of money owed, not the time factor. Meaning, the teacher should not have to finish a 1 year contract again to get severance payments.
4. Can you cite an exact law (not just reference "the law") that says an employer has unilateral say so to pay 1 year and then reset the clock so that the teacher has to finish the second year to get any of the severance owed for that second year?
5. That's why we are posting on here to see what the law is. Please don't just say "the law", what does it state if you know? I am seeing some arguments for and against setting the clock back.
6. I am trying to find what it is in one situation and what it is in another situation. Unless there are 2 different bodies of "Korean Labor Law" and if this were to go to court, it wouldn't be a matter of flexibility or 2 situations. It would a rather one way path to find the law if it is there.
7. The premise is that the teacher worked one year, signed on for a second, and then the employer chose to pay severance early in the second contract period. If the contract were unclear, then what would the almighty Korean Law dictate? Would the teacher be bound to the employer's decision and have to finish a second year because they received severance pay for the first year, or would they be able to get a prorated amount like in the original poster's situation? |
(numbers are mine)
1. It is pro-rated only if the employer does not pay severance after the first year.
2. Excuse me...where did I explicitly state that the employee has no say-so? More on this later.
3. Korean law states you have to finish a full year to receive severance. so one year is one month's severance 2 years is two years severance and so on. Now once you collect severance the employment contract is regarded as finished. Legally the clock restarts.
4. No, no I can't. Can YOU cite me stating that such a law existed in the first place?
5. See 4 and 6
6. No there are not two bodies of Korean Labor Law. But again here's the thing. KLL sets minimum standards. A contract can offer better standards/working conditions than KLL offers and that is perfectly legal. On the other hand it may only offer the minimum conditions and again that is perfectly legal. So it depends on what the contract states in this regard. Also many contracts (before signing) are negotiable...this goes back to number 2.
7. If that is the premise then yes the teacher would have to finish the full second year. You only get a prorated amount if the employer doesn't pay until you are completely finished.
http://www.moleg.go.kr/english/korLawEng;jsessionid=Ndiwa6bzpEwaUh5vra5xtvaqaGEjwIB9z0pZ3sWLYKEtrVwjr4boWTVD1G61Fyw4?pstSeq=47471&pageIndex=70 |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Tue Feb 21, 2012 12:32 am Post subject: |
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| 7. If that is the premise then yes the teacher would have to finish the full second year. You only get a prorated amount if the employer doesn't pay until you are completely finished. |
We finally landed on common ground. So, what if an employer chose to pay the employee the first year severance when they paid for the first month's salary of the second year?
What can the teacher do to say, "No, I want my severance prorated, keep the severance from first year."?
Let's not use a secondary contract as a security blanket. Let's use the law and ONLY the law to our advantage. Any contract signed was vague and didn't clearly state the employer would or would not pay the first year's salary when a teacher continued into a second year. How can we use the law to stop an employer from unilaterally making the severance payment, thus resetting the clock? |
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TheUrbanMyth
Joined: 28 Jan 2003
Location: Retired
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| Posted: Tue Feb 21, 2012 3:19 am Post subject: |
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| YTMND wrote: |
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| 7. If that is the premise then yes the teacher would have to finish the full second year. You only get a prorated amount if the employer doesn't pay until you are completely finished. |
We finally landed on common ground. So, what if an employer chose to pay the employee the first year severance when they paid for the first month's salary of the second year?
What can the teacher do to say, "No, I want my severance prorated, keep the severance from first year."?
Let's not use a secondary contract as a security blanket. Let's use the law and ONLY the law to our advantage. Any contract signed was vague and didn't clearly state the employer would or would not pay the first year's salary when a teacher continued into a second year. How can we use the law to stop an employer from unilaterally making the severance payment, thus resetting the clock? |
You say "No I want my severance prorated, keep the severance from first year."
http://www.legal500.com/c/south-korea/developments/16732
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| Interim Severance Payment: Pursuant to Article 8, Clause 2 of the Employee Retirement Benefits Security Act, employers can provide interim severance payment upon employees� request, which enabled some employees to use their severance payment for purposes other than their retirement plan. The proposed amendment stipulates that employers may not provide interim severance payments unless certain conditions prescribed in the Presidential Decree have been satisfied (e.g., when an employee seeks to purchase his/her home). |
(bolding mine) |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Tue Feb 21, 2012 3:37 am Post subject: |
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| The proposed amendment stipulates that employers may not provide interim severance payments unless certain conditions prescribed in the Presidential Decree have been satisfied (e.g., when an employee seeks to purchase his/her home). |
So, we have to buy a home before we get severance? |
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TheUrbanMyth
Joined: 28 Jan 2003
Location: Retired
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| Posted: Tue Feb 21, 2012 3:42 am Post subject: |
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| YTMND wrote: |
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| The proposed amendment stipulates that employers may not provide interim severance payments unless certain conditions prescribed in the Presidential Decree have been satisfied (e.g., when an employee seeks to purchase his/her home). |
So, we have to buy a home before we get severance? |
I have a strong feeling I am being trolled since I would have thought anyone who graduated from college would have been able to read that and understand it (particularly the word "interim")
No we don't have to buy a home.  |
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Wildbore
Joined: 17 Jun 2009
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| Posted: Tue Feb 21, 2012 3:54 am Post subject: |
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| YTMND wrote: |
The premise is that the teacher worked one year, signed on for a second, and then the employer chose to pay severance early in the second contract period. If the contract were unclear, then what would the almighty Korean Law dictate? Would the teacher be bound to the employer's decision and have to finish a second year because they received severance pay for the first year, or would they be able to get a prorated amount like in the original poster's situation? |
Depends on if the teacher complained about the early severence deposit or not. If the teacher did not complain, it could be taken as an implied acceptence of the deposit. Discuss the issue with the employer, if that doesn't work, consult the labor office for remedy. Retirement pay is due upon retirement, not earlier unless agreed upon either in the contract or otherwise. |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Tue Feb 21, 2012 4:25 am Post subject: |
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Why is that a holier than thou term? |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Tue Feb 21, 2012 4:29 am Post subject: |
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| could be taken as an implied acceptence of the deposit. |
And that would mean what?
What is wrong with Employer saying, "Here is your severance SO FAR"
Like how I capitalized "so far" as to give importance to the state of time?
THEN, whooo more caps, the employer says, you will get severance based on what you work from here on out.
What is wrong with that? |
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Wildbore
Joined: 17 Jun 2009
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| Posted: Tue Feb 21, 2012 4:54 am Post subject: |
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| YTMND wrote: |
| Quote: |
| could be taken as an implied acceptence of the deposit. |
And that would mean what?
What is wrong with Employer saying, "Here is your severance SO FAR"
Like how I capitalized "so far" as to give importance to the state of time?
THEN, whooo more caps, the employer says, you will get severance based on what you work from here on out.
What is wrong with that? |
There is nothing wrong with that.
According to labor law the clock resets when a severence/retirement payment is made. The labor board enforces labor law and by resetting the clock, it means they won't go to bat for you when you need to collect the extra money if your employer changes his mind on the "from here on out" remark.
What you posted above sounds like a verbal agreement. Verbal agreements are flimsy at best, and you would have to enforce it in civil court (more work) and he could raise defenses (such that he never made any promises). |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Tue Feb 21, 2012 12:44 pm Post subject: |
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| What you posted above sounds like a verbal agreement. |
No. I am talking about the employer choosing to pay severance after the 1 year mark without any agreement. The premise is that the contract does not state specifically when it will be paid. No verbal agreements. The employer unilaterally decides to pay without any discussion with the teacher.
This is supposed to be acceptable by Korean law? |
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TheUrbanMyth
Joined: 28 Jan 2003
Location: Retired
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| Posted: Tue Feb 21, 2012 3:47 pm Post subject: |
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Only the employer can't do that. As I posted above the new amendment (which comes into force this summer) will prevent him from doing so).
The ONLY way he could do this is if the employee agrees AND if it meets certain conditions (like the employee wants to buy a house).
So debate over.
Last edited by TheUrbanMyth on Wed Feb 22, 2012 6:18 am; edited 1 time in total |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Tue Feb 21, 2012 4:52 pm Post subject: |
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| TheUrbanMyth wrote: |
Only the employer can't do that. As I posted above the new amendment (which came into force last summer) prevents him from doing so).
The ONLY way he could do this is if the employee agrees AND if it meets certain conditions (like the employee wants to buy a house).
So debate over. |
Can you please paste in this forum the actual text you are referring to instead of just saying "the law"? I am not trying to be a troll, I am not trying to get on your bad side. I just would like to see where it says it.
I am not trying to debate anything either. I am trying to get information. There's a difference. |
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TheUrbanMyth
Joined: 28 Jan 2003
Location: Retired
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| Posted: Tue Feb 21, 2012 6:48 pm Post subject: |
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| YTMND wrote: |
| TheUrbanMyth wrote: |
Only the employer can't do that. As I posted above the new amendment (which came into force last summer) prevents him from doing so).
The ONLY way he could do this is if the employee agrees AND if it meets certain conditions (like the employee wants to buy a house).
So debate over. |
Can you please paste in this forum the actual text you are referring to instead of just saying "the law"? I am not trying to be a troll, I am not trying to get on your bad side. I just would like to see where it says it.
I am not trying to debate anything either. I am trying to get information. There's a difference. |
I already posted the actual text AND the link above. But here it is again.
http://www.legal500.com/c/south-korea/developments/16732
| Quote: |
| Interim Severance Payment: Pursuant to Article 8, Clause 2 of the Employee Retirement Benefits Security Act, employers can provide interim severance payment upon employees� request, which enabled some employees to use their severance payment for purposes other than their retirement plan. The proposed amendment stipulates that employers may not provide interim severance payments unless certain conditions prescribed in the Presidential Decree have been satisfied (e.g., when an employee seeks to purchase his/her home). |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Tue Feb 21, 2012 8:56 pm Post subject: |
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| I already posted the actual text AND the link above. |
That is a reference on a website which paraphrases a law, but it's not the actual law. You mentioned "Article 8, Clause 2 of the Employee Retirement Benefits Security Act", but when I google it, I also get "Civil Service Retirement Act". Maybe it's not the same thing.
I am looking for the EXACT law, not a reference or a description of what it states. I am looking for it verbatim.
Where would this law be stated in because I am getting several sources for an "Article 8" and "Clause 2"? |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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