Update provided by Kim & Chang
An amendment to the Labor Standards Act (LSA) defining and prohibiting “Workplace Harassment” (the LSA Amendment) was promulgated on 15 January 2019 and came into effect on 16 July 2019. On 21 February 2019, the Ministry of Employment and Labor (MOEL) released the Manual on How to Determine, Prevent and Respond to Workplace Harassment (the Manual).
Under the LSA Amendment, Workplace Harassment is defined as an “act by an employer or worker, which causes physical or mental suffering, or worsens the working conditions/environment of another worker, by taking advantage of his/her position or relationship within the workplace beyond the appropriate scope of work.” The obligations of an employer regarding Workplace Harassment are provided as follows (Articles 76-2 and 76-3 of the LSA Amendment):
- Prohibit Workplace Harassment (both employer and worker);
- Conduct fact finding and investigation without delay if an employer is notified or is made aware of Workplace Harassment;
- Take appropriate measures to protect the victim, such as changing the workplace or placing the victim on 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 changing the workplace of the harasser;
- Do not take any disadvantageous measures, such as dismissal, against the victim or the worker who reports the occurrence of Workplace Harassment (an employer is subject to a criminal fine of up to KRW 30 million or imprisonment of up to three years for violation of this obligation); and
- Provide measures on how to prevent and respond to Workplace Harassment in the Rules of Employment (ROE).
In the Manual, the MOEL attempt to explain the requirements which must be met for an incident to constitute Workplace Harassment prohibited under the LSA, and specific measures on how to prevent and respond to Workplace Harassment.
The Manual includes, among others: (i) an explanation on Workplace Harassment-related laws and regulations, criteria for how to determine Workplace Harassment, and detailed examples; (ii) measures on how to prevent and respond to Workplace Harassment; and (iii) examples of relevant ROE provisions and sample awareness survey questions that can be used in workplaces.
The examples of Workplace Harassment provided in the Manual include:
- Physically assaulting or threatening a worker;
- Repeatedly and continuously using profane or abusive language;
- Defamatory acts such as humiliating a worker in front of other workers or on the internet or spreading rumors regarding a worker’s personal affairs;
- Repeatedly ordering a worker to perform personal chores unrelated to the worker’s task without reasonable grounds, such as ordering a worker to run personal errands;
- Not recognizing the work performance or achievements of a worker without reasonable grounds or ridiculing or mocking the worker;
- Engaging in a collective action of bullying, or excluding the worker from receiving important work-related information or from the decision-making process related to work without any justifiable grounds;
- Assigning work that is not relevant to the work specified in the worker’s employment agreement or only assigning menial tasks that are not relevant to the work specified in the worker’s employment agreement for a considerable period of time;
- Assigning almost no work to a worker for a considerable period of time without justifiable reasons; and
- Any other act that causes physical/mental suffering, or worsens a worker’s working environment beyond the appropriate work scope.
In addition to recommending that provisions regarding measures on preventing and responding to Workplace Harassment be added to the ROE, the Manual recommends workplaces to create internal regulations regarding types of prohibited acts, preventive training, measures to protect victims, and measures against harassers.
The Manual also introduces other measures, such as CEO policy statement, inspection of risk factors, workplace harassment & bullying prevention training, operating/designating a responsible team to handle (oversee) related matters, and internal awareness campaigns and promotion regarding the internal policies & procedures (i.e., internal system) in place. Further, the Manual also emphasizes the importance of maintaining confidentiality regarding the victim and the relevant persons while promptly handling a reported incident.
Now the LSA Amendment has taken effect, it is expected that there will be many reports and disputes regarding Workplace Harassment. In addition, there has also been an amendment to the Industrial Accident Compensation Insurance Act. This law newly includes “illness resulting from work-related mental stress caused by Workplace Harassment or verbal abuse of a customer, etc.” in the standards for recognizing occupational accidents. Thus, if Workplace Harassment occurs, the possibility of a victim’s illness resulting from work-related mental stress being recognized as an occupational accident will likely increase.
Therefore, companies should be familiar with the LSA Amendment and the Manual, add provisions relating to Workplace Harassment in the ROE, and also thoroughly prepare prevention and handling measures, such as conducting prevention training, identifying the status of Workplace Harassment, and establishing disciplinary process and improvement plans accordingly to prevent and respond to Workplace Harassment.
For further information on this development, please contact Weon Jung Kim or Do-Yoon Kim of Kim & Chang.