Korean labor law: The Workplace Harassment Prevention Law and the Employer’s Duty

Korean labor law: The Workplace Harassment Prevention Law and the Employer’s Duty

Bongsoo Jung / KangNam Labor Law Firm

I. Introduction  

Recently workplace harassment within large corporations has become a social problem. Every day it seems that the executives of these companies are reported by the media on issues such as abusive language, assault, and inhumane treatment of their employees, but these acts which are revealed to the public are but the tip of the iceberg. According to a survey by the Korea Labor Institute,[1]  66.3% of respondents said that they had experienced direct harassment at their workplace in the past five years. Also, according to the Human Rights Commission's survey,[2] 73.3% of respondents experienced workplace harassment over the past year. The average number of harassment was 10.0 cases, the experience of personal harassment was 39.0%, and the experience of collective harassment was 5.6%. These workplace harassments have resulted in negative reactions such as consideration of resignation (66.9%), less confidence in the company and its senior officials (64.9%), a decline in work performance and concentration (64.9%), and a reluctance to relate with peers (33.3%).

The damage due to workplace harassment continues to grow and so the Workplace Harassment Prevention Law was enacted because of public demand for improvement. This Law, as it was finalized, was a considerable retreat from the original legislative initiatives. When first suggested in April 2018,[3] it included very strong articles: (1) the obligation of the employer to provide training on harassment prevention in the workplace, and (2) a victim of workplace harassment could seek remedy through the labor relations commission. These were both deleted in the final draft. Nevertheless, it is meaningful that it was introduced into the Labor Standards Act. The details are described below.

II. Content of the Workplace Harassment Prevention Law

1. Amendments to the Labor Standards Act

(1) The employer's obligation to prohibit workplace harassment

Article 76-2 (Prohibition of Workplace Harassment) The employer or an employee shall not cause physical or mental suffering or deteriorate the working environment, exceeding the appropriate level of bearable limits, by taking advantage of his or her position or relationship in the workplace (hereinafter referred to as " workplace harassment").

(2) Obligations of the employer in case of an occurrence of workplace harassment

Article 76-3 (Measures in case of bullying in the workplace) ① Any employee who has been informed of the occurrence of workplace harassment can report the fact to the employer.

② The employer shall conduct an investigation to confirm the facts without delay if the employer acknowledges the occurrence of harassment in the workplace or accepts a notification under Paragraph 1 above.

③ The employer shall, when necessary for the protection of workers who have suffered damage related to workplace harassment within the period of investigation pursuant to paragraph 2 (hereinafter referred to as "victims"), implement appropriate measures such as a change of place of work, paid leave order, etc. In this case, the employer shall not take such measures against the will of the victim.

④ The employer shall take appropriate measures such as changing the place of work, job transfer, order of paid leave etc. when the victim requests it, if the fact of workplace harassment is confirmed as a result of the investigation pursuant to Paragraph 2 above.

⑤ The employer shall take all necessary measures such as disciplinary punishment, change of work place, etc. without delay when it is confirmed that workplace harassment has occurred. In this case, the employer shall consider the opinion of the victim about the proposed measures prior to taking any action, such as disciplinary action.

⑥ The employer shall not dismiss or take any other unfavorable steps against the employee who reported the occurrence of harassment in the workplace or the victim.

 (3) Addition of required items listed in the Rules of Employment

Article 93 (Preparation and Filing of Rules of Employment) 11. Matters concerning prevention of and measures to handle an occurrence of workplace harassment

(4) Prohibition of disadvantaged treatment of complainant or victim

Article 109 (Penalty) The employer shall be punished by imprisonment for not more than three years or a fine of not more than KRW 30 million if found in violation of Paragraph 6 of Articles 76-3 of this Act.

2. Amendment to the Industrial Accident Compensation Insurance Act

  Article 37 (1) of the IACI Act, which lists reasons for acceptance as occupational diseases, has added "illness caused by work-related mental stress, such as workplace harassment and abuse of the worker pursuant to Article 76-2 of the Labor Standards Act".

3. Amendments to the Industrial Safety and Health Act

   Article 4 of the ISH Act (Government obligations) added a new item: “10. Establishment, guidance and support of measures to prevent workplace harassment pursuant to Article 76-2 of the Labor Standards Act”.

III. Explanation of Workplace Harassment

1. Definition of workplace harassment

It is meaningful that the definition of workplace harassment clearly defines the obligations of the related employer and the standard of related harassment incidents. Until this concept was established, the labor law had no legal obligation or liability for workplace harassment. Therefore, under the existing legal system, the measures that a victim who had been harassed in the workplace could take to the employer included (1) a claim for damages based on the liability of the victim for illegal acts (Article 750 of the Civil Act); 2) a suit for damages (violation of the obligation of safety considerations by labor contract) (Article 390 of the Civil Act), and (3) a complaint under Article 30 (Human Rights Violation) of the National Human Rights Commission Act. In general, it is very meaningful that the Labor Standards Act has stipulated a definition of workplace harassment in order to strengthen the obligations of employers and to protect the workers with measures to receive remedy for workplace harassment.

2. Establishment of the employer's duty for action in case of workplace harassment

In case of workplace harassment, the victim or a third party can notify the employer. An employer who has been informed of the occurrence of workplace harassment must conduct an investigation to confirm the fact. In the course of this investigation, measures should be taken to protect the victim and, if the investigation confirms the workplace harassment, disciplinary action should be taken without delay.

In the event of such workplace harassment, the rules for reporting and the processing procedures in the workplace apply equally to the sexual harassment remedy procedures under Article 14 of the Equal Employment Act. Nevertheless, the Equal Employment Act enforces a fine of up to KRW 10 million if a company does not investigate and take appropriate measures when sexual harassment occurs in the workplace, but there is no similar penalty clause in the Workplace Harassment Prohibition Law. In addition, even if the employer has sexual harassment in the workplace, there is a penalty in the Equal Employment Act, but there is no fine in the amendment bill of the Labor Standards Law prohibiting workplace harassment if the employer becomes a perpetrator. Provided, in the same way as the Equal Employment Act, if the employer gives unfavorable treatment to employees and victims who have reported workplace harassment, the employer can be punished by imprisonment for up to three years or a fine of up to KRW 30 million.

3. The addition of ‘workplace harassment’ in the required items of the Rules of Employment

An employer who routinely employs 10 or more workers must fill out the 12 required items in the Rules of Employment and report them to the Minister of Employment and Labor (Article 93 of the LSA). Here is the required item added in relation to workplace harassment: "11. Matters concerning prevention and measures in case of occurrence of workplace harassment.” In other words, it is stipulated in the Rules of Employment that the company has implemented measures related to workplace harassment.[4]

4. Penalties applicable for unfavorable treatment by an employer

It is regulated as the employer’s duty, in the self-governing rules, that the employer should explore preventive measures against workplace harassment and take appropriate measures. However, if disadvantageous treatment of victims is taken, the employer should and can be severely punished, similar to the Equal Employment Act. In other words, Article 110 of the Labor Standards Act stipulates "imprisonment for up to three years or a fine of not more than KRW 30 million in violation of Article 76-3 (Paragraph 6) of this Act".

5. Amendment to the Industrial Accident Compensation Insurance Act

  The current Article 37 (1) of the IACI Act did not recognize occupational accidents caused by workplace harassment, but the revised law does recognize an occupational accident due to "illness caused by work-related mental stress such as workplace harassment”, and so this article will provide a legal basis to occupational accidents. Diseases caused by workplace harassment were difficult to have recognized as a work-related injury by the Korea Workers' Welfare Corporation, and were accepted exceptionally only after complicated legal disputes. However, with the revised law, the Welfare Corporation has opened the way for victims to be recognized more quickly in the first work-related accident assessment stage.

6. Amendments to the Industrial Safety and Health Act

 Workplace harassment has an adverse effect on the mental and physical health of the workers, undermining their opportunity to work in a healthy environment. Therefore, the amendment to Article 4 of the ISH Act, to prevent illness caused by workplace harassment, imposes upon the government an obligation to act. In this regard, the Ministry of Employment and Labor has prepared 'A Practical Manual for the Prevention of Workplace Harassment and Countermeasures Against It’, which will be distributed to all companies. Unfortunately, this obligation to prevent workplace harassment is defined as an obligation of the state rather than a direct obligation of the employer, so that the employer is not responsible for violations of the ISH Act.

IV. The Effect and Limitations of the Workplace Harassment Prevention Law

1. Effect of the Workplace Harassment Prevention Law

  It is not easy for ordinary workers to take legal action for harassment against a workplace because such matters take a considerable amount of time and money. However, the amendment to the Labor Standards Act clarifies the concept of workplace harassment, and in particular the obligation of prohibition of workplace harassment by an employer, along with the obligation to implement relief procedures that will enable victims to receive protection and relief from workplace harassment more quickly.

2. Limitations of the Workplace Harassment Prevention Law

 Although this law will contribute greatly to the improvement of the human rights of workers, there are some shortcomings.

 First, there is no provision for legal sanction against an employer's workplace harassment. New amendments to the workplace harassment law do not specify penalties against the company or penalties for the offender him/herself’. In general, as workplace harassment is often the result of a high-ranking official becoming the perpetrator in a power relationship, this revision of the Labor Standards Law is insufficient.

 Second, there is no legal sanction if an employer does not to take reasonable action when a complaint of workplace harassment occurs in the workplace. The revised bill stipulates that in the event of harassment within the workplace, the Act on the Equal Employment between Men and Women is the same as the obligation to implement measures related to the occurrence of sexual harassment in the workplace. However, in the case of sexual harassment in the workplace, the employer will be punished if the employer does not take reasonable measures. As the amendment to the Labor Standards Act does not require the employer to assume legal responsibility for undertaking any necessary investigation or other reasonable action in case of an occurrence of workplace harassment, it is limited in its protection of workers.

V. Conclusion

  Even if there are many deficiencies, it is meaningful that the introduction of the Workplace Harassment Prevention Law stipulates the duty of the employer to prevent workplace harassment, whether within the company or between workers. Although there are no direct penalties for the employer, we expect that this new law will contribute to creating a fair and desirable workplace culture.

[1] Keunjoo Kim/Kyunghee Lee, 「A Survey of Workplace Harassment and The Countermeasures」, Korean Labor Institute, December 2017.

[2] Sungsoo Hong et al, 「A Survey of Workplace Harassment」, The National Human Rights Commission of Korea, November 2017.

[3] Byungwon Kang and 23 other lawmakers’ legislative initiative, 「A Draft of the Workplace Harassment Prevention Act」, No. 13290, April 27, 2018.

[4] Labor Ministry Guideline: “Operational Guides for the Rules of Employment”, LSA Dept-1119, April 24, 2009.