|Working Conditions for Minors
Minors are in the process of growing up as adults, so they are less developed physically and mentally, and receive special protection because they are legally required to go to school. Korea’s Constitution (Article 32, Paragraph 5) stipulates that special protection shall be accorded to working minors, and Chapter 5 of the Labor Standards Act specifically describes the working conditions of minors. Minors work as short-term workers, fixed-term workers, and workplace trainees in 24-hour convenience stores, fast food restaurants, and production plants. Therefore, when considering their working conditions, it is necessary to consider the conditions at workplaces with fewer than 5 workers in mind. For field trainees in particular, working conditions vary by whether they are working as students or workers.
All the protections in the Labor Standards Act (LSA) apply to working minors as well as adult workers. This includes the prohibitions against discrimination, forced labor, and violence, restrictions on unfair dismissal and managerial layoffs, and the requirement to issue written employment contracts. However, in workplaces with fewer than 5 employees, dismissal restrictions, shut-down allowances, additional wages for overtime work, and annual paid allowances do not apply.
I would like to list the working conditions for minors in detail by sections and special protection regulations together. In addition, I will examine whether trainees are students or workers in legal disputes.
II. Scope of Working Minors and Occupations from which They Are Prohibited
1. Scope of Working Minors
In principle, no person under the age of 15 shall be employed as a worker. However, those 13 to 15 years of age with an employment permit issued by the Minister of Employment and Labor may be so employed, as long as the employment does not interfere with their compulsory education (Article 64 of the LSA and Article 35 of its Enforcement Decree). The employer shall keep in the workplace a certificate proving the family relationships and written consent from their parent or guardian for each working minor under 18 (Article 66).
2. Prohibited Occupations
Under the Labor Standards Act, employers cannot assign pregnant women or those under 18 years of age to work that involves moral or health hazards or danger (Article 65). Prohibited occupations include high-pressure work and diving work, jobs or businesses that prohibit the employment or entry of children under the age of 18, work in prisons and mental hospitals, work in incineration and slaughter, and work dealing with oil. However, they can be employed for gas station refueling service for passenger vehicles.
Employers shall not assign women or minors under the age of 18 to work in mines except where the work is temporarily needed to perform the certain duties such as health, medicine, news reporting, news coverage, etc. (Article 72).
Employers shall not abuse workers in training, workers on probation or any other apprentice whose purpose is to acquire a technical skill, or assign them to domestic work or other work not related to the acquirement of technical skill (Article 77).
Businesses where entry and employment of minors (under the age of 19) is prohibited under the Youth Protection Act (Article 2, Item 5) are:
(1) Businesses where minors are prohibited from entering or working: entertainment and other bars, video rooms, karaoke rooms (businesses with facilities that make it legal for minors to enter are excluded from the entry ban), telephone rooms, dancing academies, dancing rooms, businesses involving speculative behavior, and those involving the handling of sexual devices.
(2) Businesses prohibited from hiring minors: Accommodation, barber shops, bathing businesses in which a massage room is set up or which is divided into private rooms, tobacco retail, toxic product manufacturing, sales and handling, ticket coffee shop, places selling alcohol like soju bars, beer bars, cafes, etc., music record sales, video sales and rental shops, general game rooms, and comic book rental shops.
III. Special Protection of Labor Contracts
Employers seeking to hire minors shall draw up employment contracts for the minors to sign if they so desire in the same position in determining the working conditions (Article 4). In this case, the parents or guardians cannot act on behalf of the minor, but if the employment contract is deemed unfavorable to the minor, they can terminate it later (Article 67). Under the Civil Act, those under the age of 19 cannot engage in legal actions such as signing contracts independently, and so may engage in legal actions only with the consent of a parent or guardian. So, in the Labor Standards Act, those under the age of 18 must submit consent from their parents at the time of employment. However, working minors may independently engage in legal actions such as claiming wages and joining a labor union.
The employer must write and deliver the necessary items in the working minor’s employment contract, and if working conditions are changed, a revised employment contract must be issued (Article 17). The written contents shall include: ① (Wages) Wage composition, calculation method, and payment method; ② (Contractual working hours) shall be determined within the legal working hours for minors (7 hours per day, 35 hours per week); ③ (Weekly holidays) If workers work more than 15 hours a week, they are entitled to an average of 1 or more paid weekly holidays per week; ④ (Paid Leave) Workplaces with five or more employees must guarantee monthly paid leave and annual paid leave; ⑤ (Place of employment and work to be engaged in).
Employers must pay wages directly, in currency, and in full to working minors, at least once a month on a fixed date (Article 43). When working minors quit or the working relationship is terminated due to dismissal, any owed wages, severance pay, and other money shall be paid within 14 days of the termination (Article 36). Employers must not pay wages to the parents of their minor workers (Article 68). If working children are unable to provide work due to reasons attributable to the employer, they shall be paid 70% of their average wage (Article 46). If an emergency situation such as illness or accident occurs and working minors require immediate payment of wages for work performed before the request date in order to cover the related expenses, employers shall pay wages ahead of payday (Article 45).
Wages must be set at minimum wage at least, and cannot be lowered on account of the worker being a minor. However, for unskilled minors who have signed an employment contract for at least one year, the minimum wage may be reduced up to 10% for the probationary first 3 months. However, this is not applicable to simple labor work (Article 5 of the Minimum Wage Act, or “MWA”).
If working children quit after continuing to work for one year or more, severance pay equal to the 30 days’ average wage per year of continual work shall be paid (MWA, Article 34). However, there is no obligation to pay severance pay if the average working hours are fewer than 15 per week for each 4 week period. If some months the minor works an average of fewer than 15 hours per week and some months the minor works an average of 15 hours or more per week, only the months in which the minor worked an average of 15 hours or more per week are calculated, and severance pay is incurred only when such period is one year or longer (Article 18).
V. Special Protection of Working Hours and Rest
The working hours of persons aged 15 to 18 shall not exceed 7 hours per day and 35 hours per week. However, this may be extended by up to 1 hour per day and 5 hours per week if there is agreement between the parties. Since 1 week refers to 7 days including holidays, the longest working hours for working minors shall be 40 hours a week. Therefore, flexible working hours and selective working hours are not applicable to working minors (MWA, Articles 51 and 52).
An employer shall allow a recess period of 30 minutes or more for every 4 working hours and at least 1 hour for every 8 working hours during the work day. During these rest hours, rest should be freely available to working minors (Article 54).
If working minors continue to work for 15 hours or more per week, they are given paid weekly holidays (Article 55). If they have completed their contractual working hours for one week, they are entitled to a weekly leave allowance of one or more days (Article 55). The weekly leave allowance for working minors is determined according to the ratio calculated by the working hours of ordinary workers engaged in the same type of work at the workplace, just as the working conditions for part-time workers (Article 18).
When working minors have worked for more than the contractual working hours, employers must pay overtime allowance amounting to 50% or more of the normal wage, in addition to the normal wage (Article 6 of the Fixed-Term Employment Act).
Employers are not allowed to have those under the age of 18 work from 10 pm to 6 am or on holidays, unless the employer obtains the consent of those under the age of 18 and approval from the Minister of Employment and Labor (Article 70). According to the approval standards of the Ministry of Employment and Labor, if nighttime operations are inevitable for fast food restaurants where many minors work part-time, in consideration of the safety of working children, their health, and protecting their ability to learn during the day, the limit is 12 midnight, unless approval from the Minister of Employment and Labor is gained for special reasons. Here, the term “special reasons” refers to cases where the necessity for night work is accepted and will have no detrimental effect on the health of working minors.
Employers shall give 15 days of annual leave when working minors have attended the workplace for at least 80% of the contracted work hours during one year. Employers shall also provide one day of paid leave for each month to working minors who have continued to work for less than one year or those who have attended the workplace for less than 80 percent of the contracted work hours during one year (Article 60).
VI. Coverage by the Four Major Social Insurances
In principle, coverage by the four major social insurances are required for working minors. However, if the on-site trainees are students who are not workers, they are not eligible. For working minors, the four insurances are applied slightly differently. (1) Industrial Accident Compensation Insurance: Applies the same as for all workplaces using workers. However, on-site trainees who are not workers are exceptionally eligible for compensation from workers' compensation (Article 123 of the Industrial Accident Compensation Insurance Act). (2) Employment Insurance: Working minors who are employed for 1 day or longer are covered by employment insurance, but short-time workers with fewer than 60 working hours per month are excluded. (3) National Pension and National Health Insurance: The national pension is mandatory for those aged 18 or over and under 60 who work at a workplace. However, the National Health Insurance applies to all workers working in the workplace, regardless of age. The same applies to daily workers whose employment period is shorter than one month, and short-time workers whose contractual working hours per month are fewer than 60.
VII. Legal Issues related to Working Children
Whether or not the trainees in third grade of vocational high school are workers depends on whether or not they are students. If the main purpose for field training is to develop practical learning abilities to earn high school credits, they cannot be considered workers. However, if on-site trainees are recognized as having a subordinate relationship with the employer, they are considered workers under the Labor Standards Act.
1. Student Status
In accordance with the Industrial Education Promotion Act, 2 + 1 year public high school students take the 3rd year (1 year) course as students during the 3rd year of high school and engaged in industrial field training. A standard agreement is signed between the business, the school, and the students, and the students engage in on-site practice according to the on-site practice plan prepared in consultation with the business and the school. The business is supposed to evaluate trainee performance during on-the-job training according to the standards set by the school and notify the school of the results. Field training is a part of the curriculum in accordance with the Industrial Education Promotion Act and aims to help students acquire the knowledge, skills, and attitudes necessary for them to engage in industry in the future. In this case, it is difficult to see the trainee as a worker who provides work for the purpose of wages.
2. Worker status
Applicants who are expected to graduate are considered workers, if a subordinate relationship is recognized, and the Labor Standards Act is applied. In other words, even if they are trainees who are expected to graduate from high school and their working period is temporary, it cannot be concluded that they are not covered by the Labor Standards Act only for these reasons. In cases where it is recognized that there is a subordinate relationship pursuant to Article 2 of the Labor Standards Act based on the actual relationship between the employer and the trainee regarding the employment contract, the nature and content of work, and whether or not compensation is paid, the Labor Standards Act shall apply to the trainee.
Working minors are in their mental and physical growth stages, and since education should be given priority, they need special protection beyond that needed by adult workers. Chapter 5 of the Labor Standards Act specifies the details of this special protection. Recently, there have been many cases of industrial accidents involving students in field training, so special caution is required. Because working minors are still developing physically and mentally, they absolutely need special protection. All special protection requirements for working minors are mandatory regulations, and employers will be liable for punishment if these regulations are violated.