South Korea’s New Workplace Harassment Laws

An amendment to the Labor Standards Act (LSA) containing new provisions regulating workplace harassment has taken effect. This amendment is the first instance in Korea of legislation that expressly defines and sets forth fundamental principles to regulate workplace harassment, and it applies to any workplace with five or more employees. In advance of the effective date of this new law, the Ministry of Employment and Labor (MOEL) released a manual to provide guidance on the identification of, prohibition of, and countermeasures against workplace harassment.

In Section 2 of Article 76, the amended LSA defines “workplace harassment” as “an act of an employer (or business owner) or employee (or worker) that causes physical or mental suffering or worsens the working environment of another employee/worker by taking advantage of his/her status or relationship within the workplace beyond the appropriate scope of work.”

Additionally, the amended LSA outlines employers’ obligations regarding workplace harassment as follows:

• Prohibit workplace harassment (both by the employer or business owner and by an employee or worker).
• Promptly conduct an investigation to confirm the facts if an employer or business owner is made aware of workplace harassment.
• Take appropriate measures to protect a victim of harassment, such as transferring the victim to a different location or allowing the victim to take paid leave.
• Obtain the victim’s opinion regarding the measures to be taken against the harasser, and take necessary action, such as disciplinary action or transferring the harasser to a different location.
• Ensure protection against disadvantageous measures (i.e., retaliation), such as dismissal, for the worker and for any worker who reports the occurrence of workplace harassment.
• Specify in the rules of employment the measures to be taken in the event of an occurrence of workplace harassment.

The amended LSA employs a broad definition of “workplace harassment” and does not impose penalties, such as fines, for violation of the relevant provisions. However, the amendment mandates that employers include provisions that prohibit workplace harassment and establish countermeasures against it in the employer’s rules of employment. The employer must then report such changes to its rules of employment to the MOEL.

Comment

The amendment demonstrates the government’s express intent to address workplace harassment. Thus, stronger regulatory measures are likely to follow, and companies may want to consider taking the following steps:

• Clarify the meaning of “workplace harassment” by taking into account the work environment, culture, and other relevant circumstantial factors, and ensure the company’s policies reflect this. Depending on the circumstances, the company may consider mentioning workplace harassment measures during the company’s mandated annual sexual harassment prevention training.
• Conduct an internal audit to compare the current compliance level to the new workplace harassment provisions.
• Establish a workplace harassment prevention/countermeasure system.
• Conduct a comprehensive assessment of the company’s human resources/management system, as workplace harassment issues may arise on all fronts.

Written by Robert R. Flemer of Kim & Chang and Roger James of Ogletree Deakins

© 2019 Kim & Chang and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.