By Don Southerton, Korea Expert Witness Editor and Chief Blogger
Invest Korea is an excellent resource. This article was posted in their May e-letter. According to the Korea International Labor Foundation, a revised law took effect on March 22, 2009 and beginning in 2010 age discrimination will be prohibited in all processes of employment like training, promotion and dismissal including wages.
From the March 22 law, age limits without sound reasons is banned in recruiting or employing workers. If employers violate this law, they will be punished or fined. Also, from 2010, age discrimination is banned in all processes of recruitment or employment such as wage and non-wage remuneration payment, fringe benefits, training and education, job placement, transfer and promotion, and retirement and dismissal.
The Ministry of Labor and the National Human Rights Commission released on March 17 that ‘Act on Age Discrimination Prohibition in Employment and Aged Employment Promotion’ will be applied to all workplaces with one employee and over.
From now on, age discrimination without sound reasons, for example, recruitment advertisement writing phrases like ‘ages below OO wanted’, ‘wanting workers born after 19○○’, and ‘wanting workers graduated from a college within OO years’ or interview questions like ‘Can you do this job as you are that young?’ will be prohibited. Also, indirect discrimination, in which employers apply other standards rather than age so that specific person (or specific age groups) is discriminated as a result, will be also forbidden.
However, cases exempted from the age discrimination prohibition are stipulated as follows: △ when a certain age group is inevitably required in consideration of the characteristic of a duty; △ when there is a difference in wages, or money and valuables, and benefits package aside from wages, considering the difference in a continuous service period; △ when a retirement age is set in labor contracts, work rules, and collective agreements; and △ when support measures are implemented to maintain and promote the employment of a certain age group.
A person who suffered from age discrimination as a result of violation of age discrimination prohibition may file a petition to the National Human Rights Commission. After investigating the petition, in case the NHRC determines there is age discrimination, the NHRC recommends a remedy. The Minister of Labor may issue a redress order independently or upon the victim’s request if an employer in receipt of a recommendation fails to comply with such recommendation without any legitimate grounds and when the degree of damage is believed to be grave.
If an employer fails to comply with a redress order without a justifiable reason, he or she shall be imposed upon negligence fine up to 30 million won. Also, when an employer dismisses a worker or gives discriminatory treatment under the pretext that the worker files a petition, lawsuit, or report of the discrimination, the employer is subject to maximum 2-year imprisonment or 10 million won fine.
The Ministry of Labor and the National Human Rights Commission expect that the law revision of this time will promote employment of the aged by remedying discriminatory practices based on age and will go further to serve as an opportunity for building reasonable HR management and corporate cultures based on ability rather than age.
The existing ‘Act on Aged Employment Promotion’ has been criticized as it forbids discrimination only in cases of recruitment, employment, and dismissal and does not have the concept of indirect discrimination, compromising the effectiveness of the law application. In addition, other laws prohibiting discrimination against women, the disabled, and fixed-term and part-time workers are in effect.
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