Working in a foreign country can mean navigating unfamiliar laws and workplace rules. For foreign workers in Korea, one key question is whether they qualify as workers under Korean law — even if their contracts describe them as freelancers.
This article looks at labor disputes in fields that employ many foreign workers and at court cases involving workers in Korea. The previous edition of this series covered the rules and procedures for foreign nationals working here.
The Labor Standards Act’s protections can apply to foreign nationals, including those without legal immigration status, if they qualify as workers and have provided labor.
'Worker’ status is crucial
The Labor Standards Act sets basic standards for working conditions, including wages, working hours, holidays and leave. It does not apply to everyone who performs labor, however.
The act excludes, for example, people hired directly by private households for domestic work, as well as some workers covered by separate laws, such as seafarers.
Some provisions, including those on dismissal restrictions, working hours and annual paid leave, do not apply to workplaces with fewer than five regular employees.
The law’s coverage can therefore depend on both a person’s work status and the size of the workplace.
People who are genuinely independent contractors or freelancers are generally not covered by the act’s employee protections. This can affect foreign lecturers working under freelance contracts, who may not be entitled to paid leave or other benefits available to workers under the act.
The government is seeking to revise the law to set basic employment standards for people working under contracts for a fee, including independent contractors such as delivery-platform workers and lecturers.
As of October, the proposed revision remains pending at the National Assembly. Until the law changes, workers should check their employment status and contract carefully.
Freelance lecturer could be employee
A person may still qualify as a worker even if a contract describes them as a freelancer. The legal definition focuses on whether someone provides labor to a business or workplace to earn wages.
Court rulings have recognized people working under freelance contracts as workers when the substance of their work relationship met that definition.
A dispute involving 17 foreign lecturers and a private language institute in Gangnam-gu, southern Seoul, began in 2011.
The lecturers sought severance pay and other benefits, arguing they were workers despite having signed freelance contracts.
The local branch of the Ministry of Employment and Labor rejected their claim, finding that they were not workers. The lecturers followed with a civil lawsuit. After prevailing at a lower court and in an appeal, the Supreme Court upheld the decision.
The case centered on whether the lecturers could be considered workers despite their freelance contracts, and whether their agreement to waive severance pay meant the institute did not have to pay it.
The lecturers received higher fees than Korean instructors at the same institute despite working fewer hours, and their contracts were titled “Agreement for Teaching Services.”
The court found that the lecturers worked under the institute’s supervision and guidelines and were effectively subordinate to it. It therefore treated them as workers under the law.
The court also said that severance pay is a mandatory benefit that cannot be waived through a contract. A written agreement restricting an employee’s basic rights cannot, by itself, exempt an employer from that obligation, the court said.
Labor consultant Jung Bong-soo, who discussed the case in his book, "A Practical Guide for Labor Issues" (available only in Korean), said it illustrates three principles: the actual relationship between the employer and worker matters more than the label in a contract; higher pay does not, by itself, mean the Labor Standards Act does not apply; and an agreement to waive severance pay is not valid if it violates a mandatory legal provision.
Consecutive employment and severance pay
Workers who have been continuously employed for at least one year and whose average weekly working hours over a four-week period calculate to at least 15 hours are entitled to severance pay.
Eligibility depends on whether they qualify as workers, rather than on whether their contracts are called full-time, part-time or freelance.
Some employers may try to avoid paying severance by ending contracts before a worker reaches one year of service.
Jung’s book describes a case in which seven foreign teachers sought severance pay from an international school founded in 1999. The school rejected their claims, saying the teachers had signed 10-month contracts that were renewed each year.
The teachers had worked at the school for an average of about four years. Their contracts ended at the close of each school year and began again at the start of the next.
The Ministry of Employment and Labor ruled that the teachers should receive severance pay, recognizing their work as continuous across multiple years except for periods when they were not under contract during school breaks.
It said the roughly two-month break each year should be excluded when calculating the severance pay.
