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Labor Law ? regarding Foreigners and Permanent Contracts
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ed4444

Joined: 12 Oct 2004

Posted: Sun Nov 17, 2013 7:03 pm Post subject:

Just a bit of additional info from my own legal experience in this exact area. I have an F-5 visa and my contract was non-renewed recently after 4 consecutive annual renewals. I thought I could argue the case that I was a de-facto permanent employee now but then I got snared by the fact that my income was too high as I explained earlier. However, in the labor court I was able to show I had the expectation of contract renewal based on documentation showing that my housing lease had been extended already by my employers with my name on it and some other documentation. Therefore, the labor court ruled my contract non-renewal was illegal based on expectation of renewal and ordered that I be re-instated.

Zyzyfer

Joined: 29 Jan 2003
Location: who, what, where, when, why, how?

Posted: Sun Nov 17, 2013 8:01 pm Post subject:

ed4444 wrote:

This law definitely exists. If you do three consecutive one year contracts then subsequent contracts are just to establish conditions as you are technically a permanent worker.

However, there is a lot of small print exceptions with this law so you have to check very carefully to see if you fall within one of the loopholes.

I'm curious about these loopholes you mention. Are they in writing somewhere?

mr. positive wrote:

As I understand it, yes, after two years of employment at an employer, you are considered a permanent, full-time employee who cannot be terminated without very good cause. HOWEVER, no employer is obligated to provide you with a work visa - so you can have all the legal rights in the world to permanent employment, but if your employer decides to stop providing you with visa support, you would be screwed in that regard if you are not an F-visa holder. That is what makes non-F-visa holders de facto contract employees.

I think this is a very clear and concise version of what my predecessor was trying to describe. Thank you very much for your input!

The Cosmic Hum wrote:

Zyzyfer...you are on an E2 visa?
I wonder how this would affect you if you were on an F5 visa?

I am on an E-7, but in practical terms, it is no different from an E-2. It does not confer any special benefits that an E-2 does not once you've obtained it.

My predecessor was on an F-class visa when he made his appeal to our HR department, and he successfully remained a fixed-term employee. He did imply that it was a bit more of a stretch for him than it should be for someone not on an F-class visa.

ed4444 wrote:

However, in the labor court I was able to show I had the expectation of contract renewal based on documentation showing that my housing lease had been extended already by my employers with my name on it and some other documentation.

That's interesting to know about the housing lease. It sounds like it shows your employer's intent to continue employing you (beyond the contracts themselves). Was your reinstatement a simple year-long contract, until the lease expires, or something other, if I may ask?

YTMND wrote:

So you are going to use US law to rule Korea? Lots of luck.

yeah d00d thats why i referenced korea's labor standards act, got to keep american imperialism rolling at a brisk pace

YTMND

Joined: 16 Jan 2012
Location: You're the man now dog!!

Posted: Sun Nov 17, 2013 8:49 pm Post subject:

Quote:

thats why i referenced korea's labor standards act

Actually what you referenced was this:

"Traditionally, employment contracts in South Korea were indefinite and employees worked until a given retirement age. Fixed-term, temporary and part-time contracts are now becoming increasingly common."

What they are saying here is that you don't have indefinite employment with fixed-term contracts. If an employer is worried about a 3rd year committing themself to keeping an employee it is just that, a worry. Nothing more.

Traditionally, foreigners didn't teach English. The decision is between the employer and the employee. Either party has a right to give 30 days or so notice and that is also in the contract.

So even if you get a lease renewed for residency, the employer is allowed to give 30 days notice.

I think ed4444 got lucky to be reinstated. If the employer didn't give a 30 day notice then they should pay 1 month salary. After that, it's up to the employee to find a new school.

I don't support any system where the employer can force the employee to work or the employee to force the employer to hire them. If "the employer" is a touchy spot for you, then change the wording to "any employer" to differentiate discrimination as opposed to just one employer.

ed4444

Joined: 12 Oct 2004

Posted: Sun Nov 17, 2013 9:02 pm Post subject:

Quote:

I'm curious about these loopholes you mention. Are they in writing somewhere?

Here are the loopholes in a high level description:

http://www.koreanlaborlaw.com/tag/fixed-term-contracts/

You can link through to the Government document to get the full document:

http://www.moel.go.kr/english/poli/poliLaw_view.jsp?tab=6&idx=262

Quote:

I think it is just for one additional one-year long contract but I need to study the judgement closely to verify that.

YTMND

Joined: 16 Jan 2012
Location: You're the man now dog!!

Posted: Sun Nov 17, 2013 9:12 pm Post subject:

Quote:

a fixed-term employee who has been hired for a term exceeding 2 years is deemed as having signed a contract of an indefinite term.

ed4444

Joined: 12 Oct 2004

Posted: Sun Nov 17, 2013 9:19 pm Post subject:

YTMND wrote:

I think ed4444 got lucky to be reinstated. If the employer didn't give a 30 day notice then they should pay 1 month salary. After that, it's up to the employee to find a new school.

This kind of case is becoming increasingly common in Korea because organizations non-renew employees as an alternative to firing to avoid the minefield that is firing someone under Korean labor law. There are many precedents on the expectation of renewal these days. MBC did a big program on it recently. The court often sides on the employees side if they provide strong evidence that the employer has signalled their intention to renew before trying to use non-renewal as a termination tool.

It might be important to note that Korea was forced to loosen up employment laws (in favor of employers) during the IMF crisis. Those evil people in the IMF call it "Labor-market flexibility" but in reality it is just allowing companies to use rolling contracts to avoid giving people permanent jobs. Before that Korea was one of the most worker-empowered environments in the world legally and they were not keen to change. Therefore, the courts tend to rule on the side of the employee when possible.

Unfortunately we have the U.S to thank for giving companies lots of new ways to screw workers and then imposing their values globally via the World Bank / IMF / U.N.

YTMND

Joined: 16 Jan 2012
Location: You're the man now dog!!

Posted: Sun Nov 17, 2013 10:02 pm Post subject:

Quote:

This kind of case is becoming increasingly common in Korea

I never said it wasn't. The point is they can simply give 30 day notice and should be allowed to, just as we should be allowed to.

ed4444

Joined: 12 Oct 2004

Posted: Mon Nov 18, 2013 2:37 am Post subject:

YTMND wrote:

I never said it wasn't. The point is they can simply give 30 day notice and should be allowed to, just as we should be allowed to.

I agree that the notice of non-renewal should be equal for both sides but 30 days is a bit short IMO for international assignments. Also I think it should be something that the employer and employee agree in a contract rather than dictated by government policy although a 30 day threshold could be a good thing.

One thing I would like to see put into Korean law is what is called a default contract. At home, if an employer does not stipulate any of what would be considered standard clauses in a contract (weekly working hours, overtime pay, notice periods, etc...) then they revert to a default government contract which tends to be punitive to employers.

In Korea I have seen so many vague sparse contracts that just leave out a lot of important information. I would like to see employers punished for this practice so that they learn to be more thorough with contract conditions.

YTMND

Joined: 16 Jan 2012
Location: You're the man now dog!!

Posted: Mon Nov 18, 2013 3:11 am Post subject:

Quote:

international assignments

I am not sure what you mean by "international assignments". If a company in the US sent an American to Korea, then I could see this as an "international assignment".

However, the average waigookin Kim on an E2 visa is not on international assignment as I have defined.

Zyzyfer

Joined: 29 Jan 2003
Location: who, what, where, when, why, how?

Posted: Tue Nov 19, 2013 5:33 pm Post subject:

ed4444 wrote:

Quote:

I'm curious about these loopholes you mention. Are they in writing somewhere?

Thank you for the leads. I took a look over the documents and found them very useful. Unfortunately, I reached another dead end. You mentioned this earlier in the thread...

Quote:

For example I fell into a loophole because I earn more than 49,000,000Won per year. That classifies me as being in the top 20% of earners in Korea currently.

I was wondering how you came about this threshold? The document at the second link directed me to check with the MOEL for figures, but it's not exactly straightforward to find the data, as can be expected. Surprised

FriendlyDaegu

Joined: 26 Aug 2012

Posted: Thu Nov 21, 2013 5:12 am Post subject:

Zyzyfer wrote:

I thought it was pretty clear, unless I'm also missing something.. the Enforcement Decree of the Act (2nd link) says the figures to use are in category 2 of the latest MOEL survey on labor conditions by employment type. That survey is on MOEL's site: Publications and Statistics -> MOEL Survey Data -> Survey on Labor Conditions by Type of Employment.

I can't actually view the data now, though, b/c I don't have IE handy. I assume it breaks down salary by employment category, and we would be interested in category 2.

I'm always amazed by how much stats data (in English!) you can get from the various ministry sites here. Now if MOEL would only let me download the data directly instead of putting it into some IE only container. Some do, some don't.

Zyzyfer

Joined: 29 Jan 2003
Location: who, what, where, when, why, how?

Posted: Thu Nov 21, 2013 9:40 pm Post subject:

FriendlyDaegu wrote:

I found the data just fine. I just wasn't sure how to interpret the data to work out percentages - not to mention, the percentage I read was 25% rather than 20%...which isn't really relevant for me, but I wanted to ensure I understood things correctly.

Anyway, my case was resolved without much hassle, my HR spoke to a lawyer who said I cannot obtain a permanent contract so, oddly enough, things worked out well. I believe it is because I require a visa and have a period of sojourn, which negates things, but I have yet to inquire about the specifics.

jvalmer

Joined: 06 Jun 2003

Posted: Thu Nov 21, 2013 11:01 pm Post subject:

ed4444 wrote:

It might be important to note that Korea was forced to loosen up employment laws (in favor of employers) during the IMF crisis. Those evil people in the IMF call it "Labor-market flexibility" but in reality it is just allowing companies to use rolling contracts to avoid giving people permanent jobs. Before that Korea was one of the most worker-empowered environments in the world legally and they were not keen to change. Therefore, the courts tend to rule on the side of the employee when possible.

Unfortunately we have the U.S to thank for giving companies lots of new ways to screw workers and then imposing their values globally via the World Bank / IMF / U.N.

I always wonder why Japan changed too in the late-90's. Japan, like Korea, also had essentially life-time employment. And if you screwed up, you'd become a 'window watcher', and not outright fired (but embarrassed enough to resign... wouldn't work for me though... lol). Japan didn't get an IMF loan. Maybe they were 'pressured' to change their labor laws too?

Popocatepetl

Joined: 14 Oct 2013
Location: Winter in Korea: One Perfect day after another

Posted: Fri Nov 22, 2013 4:10 am Post subject:

ed4444 wrote:

Just a bit of additional info from my own legal experience in this exact area.

I have an F-5 visa and my contract was non-renewed recently after 4 consecutive annual renewals. I thought I could argue the case that I was a de-facto permanent employee now but then I got snared by the fact that my income was too high as I explained earlier.

However, in the labor court I was able to show I had the expectation of contract renewal based on documentation showing that my housing lease had been extended already by my employers with my name on it and some other documentation.

Therefore, the labor court ruled my contract non-renewal was illegal based on expectation of renewal and ordered that I be re-instated.

Good for you. No matter how good an employee you've been, they have a tendency to want a new face every two or three years. Most of the time the decisions made by management here are entirely juvenile or irrational.

ed444 wrote:

I agree that the notice of non-renewal should be equal for both sides but 30 days is a bit short IMO for international assignments.

Totally. Its funny how when they want rid of you, then 30 days is OK but when you give notice they expect more.

Quote:

In Korea I have seen so many vague sparse contracts that just leave out a lot of important information. I would like to see employers punished for this practice so that they learn to be more thorough with contract conditions.

Sound idea. Its too one-sided here in favor of the employer.

The Korean E2 is very similar to exploitive Qatari world cup contracts, where employers own the workers visa and laborers need a "letter of release" to change jobs.

ed4444

Joined: 12 Oct 2004

Posted: Sat Nov 23, 2013 12:10 am Post subject:

jvalmer wrote:

Japan didn't end up with an IMF loan but they were pressurised to change too during their "lost decade".

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