Korea Legal.org

By Nick Bibby

Almost every day, the phone rings, or the email pings and, after the niceties, the conversation starts something like this: “My boss says he can’t afford to pay me, is that legal?”

After a few minutes figuring out the details I give the answer I could easily have given to the first question. Essentially, it’s illegal but it’s important to be practical.

Korean law is quite clear that any worker (with the exception of certain people engaged on a specific project) must be paid at least once a month ― it doesn’t matter whether the payment rate is by the hour, the day, the week, the month, or the millisecond.

That’s the important bit, here’s the practical one. Unlike the West, it’s standard in Korea for people to be paid late if the payday falls on a weekend or a national holiday. It’s also fairly routine for the first month’s salary to take its own sweet time.

Legally a salary must be paid once a month, in cash ― which means no payment in kind ― and on an agreed date. However, it’s important to keep a sense of perspective, if your pay’s delayed by 24 hours, it’s annoying but scarcely a crisis. Alternatively if, as with some cases I’ve dealt with, it’s a month, two months, or three months, then clearly it’s a different issue.

Let’s take two examples just from last week. I’ve changed the names so as to not impact any future legal proceedings. Wednesday’s case ― let’s call her Amy ― was straightforward. She was paid late and when the cash finally turned up it was the wrong amount.

Amy’s employer said that he would hold over the first 14 days worth of pay and pay it at the end of the contract. Having talked to her co-workers, Amy quickly realized that her employer had a reputation for non-payment, employment without a visa, dismissal in the 11th month and so forth.

Essentially the boss is either a crook, an idiot or both. The objective here is securing a letter of release and the outstanding money. Amy wants to stay in the country but not in the job.

Although it’s illegal for an employer to discriminate against a worker who has taken legal action against them to protect their rights, it’s usually worth trying to play nice first. The first focus is the letter of release and getting as much of the cash as possible. With both of those life gets easier. If that doesn’t work there are still options.

Critically, whether you resign or are fired (unless it’s for gross-negligence, misconduct or a criminal offense) you must be either given or paid 30 days notice. The idea that if you’re shown the door you have to race to the airport is also a myth.

Your first stop should be your nearest immigration office to extend your visa, usually a simple process. Next is to the Labor Board or, more usually, a foreign workers’ rights center or a migrant workers support organization whose staff have the language skills to handle the case for you. Legally, you must be paid, that’s the bottom line.

Let’s take case number two, let’s call him Ben. He’s due to leave the country at the start of the following week, today is Thursday. His boss has paid him but it’s short by a little over 1.5 million won. In addition, his employer wants to compel him to stay in the country. Let’s deal with the law first, Ben must be paid ― the full amount owed and on time. In addition, an employer cannot oblige a worker to extend their contract.

The question he had is can he withhold his labor until payment is made. It’s a common question and a debatable point. Technically the employer has breached the contract, so Ben would be within his rights ― payment has not been made for work that has been given.

However, whether it’s practical when you’re leaving the country in two days and would need to remain, in practice, to argue the point is another matter.

First there’s the solution mentioned above, extend the visa and fight or hand it over to a human rights organization. When you have a couple of month’s labor as a bargaining chip, it’s got leverage. When it’s a couple of days, less so. As a result the second option is probably better ― especially with his trip around Asia already planned and paid for.

In some ways the important thing is to ensure that issues like this don’t happen to other people. Forty-eight hours before you leave may be too late and a month after you arrive too early to argue a point. With a bit of planning these problems need never emerge.

There are plenty of community organizations out there, some voluntary, others commercial ― some are a bit of both. Late payment and non-payment are fraud and theft respectively. In the same way that anyone knows where their passport, wallet or bankcard is, it’s important to know where you rights are too.

Nick Bibby is deputy CEO of RightsWatch rightswatch.co.kr ― to be launched in early September) and a doctoral student in labor law at Dong-A university in Busan. He can be reached at Nick.bibby@gmail.com