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file Vacation (holiday) guideline for 2018

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7 months 2 weeks ago #1899 by ESLwatch
Vacation (holiday) guideline for 2018 was created by ESLwatch
Reposted from PALS - Vacation (holiday) guideline for 2018:

1. The labor laws don't 100% apply to employers with less than 5 employees. Certain employees are excluded from this determination, including i) Owners, ii) The Director IF not 1 of the owners AND not properly registered with the civil courts as a Director (in Korea they're not a real Director unless registered as such with the civil courts, if registered they are not an employee of the company). iii) Bus drivers are considered dispatched workers and thus not employees. iv) Parents of the owner(s) (referred to as lineal ascendants in the labor code). v) Children of the owner(s) (referred to as lineal descendants in the labor code). vi) Independent Contractors who provide services for this company IF they meet the legal criteria to be categorized as Independent Contractors.

2. In the first year of employment vacation days are earned, even if listed in the employment contract employees must still meet the 'earned vacation' criteria to receive those days. The criteria is 1 day of vacation is owed to the employee for each month in which the employee has 80% or better attendance during that month. The maximum is 11 days (recently upped from 10 days), although if your contract specifies 10 days legally it may be considered that you agreed to the 10, and thus won't get the 1 other day.

3. Starting in the 2nd year of employment an employee is guaranteed 15 vacation days regardless of attendance. In the past employers were allowed to subtract vacation time given in the first year from the guaranteed 15 starting in the 2nd year. This is no longer allowed as of July 2018 and your vacation time in the 2nd year is separate from any vacation time taken in the 1st year.

4. In law the employee is allowed to request specific periods for their vacation time. The employer can grant those days or change the dates according to the needs of the business. An employer should not change the vacation time once approved. In reality, the employer decides when you get to take your vacation days. This is because of the cost of litigation, it would cost far more than the value of the vacation time to do anything about an employer arbitrarily changing the dates. So yes, employers have changed dates even the day before someone was supposed to leave and in most cases they will get away with this.

5. Be VERY wary of an employer letting you take your vacation time at the end of a contract. Employers have used this as a way of claiming the employee quit so they don't have to pay severance as, in the 1st year of employment, there is no severance entitlement unless the employee works a minimum of 365 days, even working 364 days doesn't qualify for severance entitlement. If your employer wants you to take your vacation time at the end of your 1st year contract make them write a letter stating this is vacation time. The letter must be stamped and/or signed by the employer (not a supervisor or head teacher). The letter must be physically given to you, agreements made via email have no legal standing. If the employer refuses to give you a letter, or shows reluctance, then DON'T DO THIS. They are likely planning to screw you on the severance entitlement.

6. You can USUALLY get paid for unused vacation days, but there are conditions.

i) You should make a written request to the employer to take the vacation days or be paid cash for them. This doesn't mean handing a letter to the employer. All the employer has to do is claim you never gave it to them. Send the letter, IN KOREAN, via registered mail. Content proof mail is best and you can find a file on our Google Drive that outlines how to do this type of mailing.

ii) The employer doesn't have to pay the unused vacation time if they can show proof that they encouraged you to take the vacation time and you didn't. Yes, unfortunately this would include offering to let you take it at the very end of your contract.

Posted by PALS: Practical Advice for Life SituationsPALS

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