Koo Hee Eon: Hello Mr. An, do you often give work orders to your employees via Kakao Talk after work?
An Tae-eun: I don’t contact anyone at work after 6 pm.
Koo: Then, you don’t have group chat rooms for your employees either?
An: I actually don’t like that kind of stuff. I believe everyone should be completely cut off from the office once they leave for the day, so…
Koo: Wow, that’s great. But today’s story is about people who haven’t been able to do that. Their boss sometimes texts them late at night or on weekends, and they have to do work-related stuff. But can they say no since they’re off work?
An: They could, but in Korean society it’s certainly not easy for ordinary employees to act so boldly.
Koo: So I’d like to change the question a bit. If they work from home after hours, can that count as overtime work? Although it doesn’t seem easy for them to file for overtime pay.
An: First, let’s go over what work time consists of. Work time is, in short, time you can’t use to do what you want. You can’t go outside the workplace, you can’t sleep, and you can’t eat during that time.
Koo: When you’re at work, there’s no time you can use to do what you want, is there?
An: Actually, there is. That’s break time. Legally, employees must be given 30 minutes of break time for four hours of work; an hour or longer for eight hours of work. Generally, people get to work at nine and leave at six, that’s a total of nine hours, but we call our workdays an eight-hour workday, because the one hour people use for lunch is considered their unpaid break time. A longer break isn’t necessarily great. There has been a lot of conflict over breaks between employers and employees. For instance, there are times when people working in shops or hair salons don’t (can’t) do anything because there are no customers. So people have fought over whether to count those times as part of their working hours or not.
Koo: But even if you want to work during those times, you can’t. It’s not like the employees can do anything they want in those cases. Or can they?
An: They can’t. Those times are called waiting times, and they’re part of their working hours. In 2012, the Labor Standard Act stipulated in Article 50 subparagraph 3, that any waiting time and other time workers spend under the supervision of their employers shall be deemed work hours. This ended all the work hour controversy at the time. But now, going back to the question at hand, the problem is that the employee’s idea of work hours is different from that of the employer.
Koo: That’s right. And that’s why people ask questions like this one.
An: So, let’s look at it this way. If work hours are defined as time that you can’t spend the way you want, then waiting times are work hours. If there are such hours during your day, then you file for overtime pay. You can file for it, or you can just decide not to take it. Legally, overtime pay refers to payment for three different types of overtime work: extended (any work time that exceeds eight hours a day, 40 hours a week), nighttime (from 10 pm to 6 am), and holiday overtime. If your overtime work meets each requirement, you will receive 50 percent more of your regular pay for each type.
Koo: For each type?
An: Yes, for each of the three types. So if you can’t use the time that applies to those three types of time period as you’d like, then you can file for overtime pay. Since there was so much concern over this issue, the National Assembly actually tabled a bill titled the “Act on Banning Work Texts After Work Hours” in 2016. It’s a move to add a subparagraph (Guarantee of Employee Privacy) to Article 6 and stipulate “An employer shall not violate workers’ privacy outside of the work hours defined in this Act by giving orders via various means of communication, such as phone (including mobile phone), texts, and social media.”
Koo: So they would like to guarantee workers the “right to disconnect” from their work after work hours.
An: It seems like it. The Labor Standards Act was created in the 1950s, and at the time it was mainly for people in the manufacturing industry. Factories were in operation at the time, so when employers were giving orders, they were able to separate work hours from breaks relatively clearly. And it was obvious that once you left the workplace, you had no more work to do. But that’s now how it is now. Always it’s work, work, work. Now that the times have changed, the law has to be revised accordingly.
Koo: If that bill is passed, then can all employees across Korea be freed from the “Kakao Talk hell” after work?
An: Oh, wouldn’t that be great. But even if the bill is passed, you can’t file for overtime right away. As I said earlier, it is overtime work, but filing for overtime pay is a real issue, so you have to be prepared.
Koo: If you know your enemy and yourself, you can win every battle! How can we prepare ourselves?
An: The key issue in filing for overtime pay is whether you can prove the length of your overtime work hours. You’ve received your boss’s instruction via Kakao Talk, but you don’t know how long it’ll take you when you start. So you’ve worked at home for 10 hours, giving up your Sunday, but if you can’t prove that, then you can’t file for overtime pay. So when people consult me, this is what I tell them: since you have three years to file for overtime pay, just collect all the evidence of your overtime work and then file for it after you quit. But, if the bill passes, general social awareness will change, and it will lead to a culture of not sending work texts via Kakao Talk. I believe it will change, slowly. Both the bosses and the employees have it hard these days.
Koo: I hope the bill passes soon so that people can have lives with real evenings when they get off work.
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