Work on Chuseok and use a compensatory day off later? A labor law Q&A for people who work even during the holidays - 경향신문

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A delivery rider traveling on a street in Seoul. Kyunghyang Shinmun file photo

Although the four-day Chuseok holiday begins on the 24th, not everyone can take time off during the holiday. People who work at restaurants, convenience stores, and cafes that remain open on Chuseok, or employees instructed by their companies to come in, naturally wonder, ‘If I work on Chuseok, how much extra will I get paid?’

Chuseok day and the two adjacent days are statutory public holidays, guaranteed as paid days off for workers covered by the Labor Standards Act. However, the same standard does not apply to every worker. Applicability varies by the size of the workplace and weekly working hours. We have organized the easily confusing ‘holiday-period labor law’ in a Q and A format.

Q. If you report to work on Chuseok, do you automatically earn 1.5 times more than usual?

Not necessarily. First, check whether your workplace has at least five regular employees and whether your prescribed weekly working hours are 15 or more.

For workers who work 15 or more hours per week at establishments with at least five regular employees, public holidays such as Chuseok are guaranteed as paid days off. If a public holiday is an originally scheduled workday, the employer must pay wages for that day even if no work is provided.

If you worked on a paid holiday, you are entitled, in addition to the wages you would have received without working, to extra pay for holiday work. For holiday work within eight hours, 50% of ordinary wages is added; for hours exceeding eight, 100% is added.

Therefore, if you worked up to eight hours on Chuseok, you are paid 1.5 times the ordinary wage for the hours actually worked. For monthly salaried workers, the paid-holiday wage is already included in the monthly salary, so this 150% is added on top of the existing monthly pay.

Hourly and daily paid workers may end up receiving 2.5 times a day’s pay. If the public holiday was a prescribed workday, that is, a day you were originally scheduled to work, the day’s actual work pay (100%) is added to the paid-holiday allowance (100%) and the holiday-work premium (50%).

Q. I work at a restaurant with four employees and will be on duty during Chuseok. Is it 1.5 times here as well?

Establishments with fewer than five regular employees are not subject to the provision that guarantees public holidays as paid days off. This is because Article 55(2) of the Labor Standards Act, which guarantees paid public holidays, applies only to establishments with at least five regular employees. The provision that requires paying at least a 50% premium for holiday work likewise does not apply.

Therefore, unless holiday-work pay has been separately stipulated in an employment contract or work rules, workers at establishments with fewer than five employees cannot receive premium pay for holiday work.

As a result, even if you worked the same hours at two restaurants that both opened on Chuseok, the legal holiday-work premium you can receive may differ if one has five or more regular employees and the other has fewer than five. This is also why establishments with fewer than five employees are often called a ‘blind spot of labor law’: provisions of the Labor Standards Act like these do not apply there.

Q. I am a part-timer who works 10 hours a week. If I work on Chuseok, can I get extra pay?

You are not excluded from holiday-work premiums just because you are a ‘part-timer’. For a worker under the Labor Standards Act, what matters more than whether you are regular or part-time is the number of regular employees at the workplace and your prescribed working hours.

If you work 15 or more hours per week at an establishment with at least five employees, the paid-holiday rule applies to public holidays such as Chuseok. If you worked that day without a lawful holiday substitution, you may also receive the holiday-work premium.

However, the paid-holiday provision does not apply under the Act to so-called ‘ultra-short-time workers’ whose prescribed weekly working hours average less than 15 over four weeks.

Therefore, absent a separate labor-management agreement, workers who work fewer than 15 hours per week do not accrue premium pay for working on Chuseok.

Q. My company says, ‘Work on Chuseok and take a day off next week.’ In that case, can it skip paying the holiday-work premium?

Simply giving a day off on another day does not extinguish the holiday-work premium that has already arisen.

However, the outcome may differ if, in advance, the company went through the lawful procedure of ‘holiday substitution’ by a labor-management agreement. Article 55(2) of the Labor Standards Act allows an employer, by written agreement with the workers’ representative, to designate another workday to substitute for a public holiday as a paid holiday.

If, through this procedure, Chuseok and a workday the following week were swapped, Chuseok becomes an ordinary workday and the substituted day becomes a paid holiday. In this case, the fact that you worked on Chuseok alone does not generate a holiday-work premium. Instead, because the substituted day is a paid holiday, in principle there is no duty to work on that day.

Conversely, if, without this procedure, the company made you work on Chuseok and then said afterward, “Take a day off next week,” that alone does not remove the obligation to pay the holiday-work premium. Letting employees rest afterward without following the procedureprior written agreement with the workers’ representative, designating the substitute day, and notifying employees at least 24 hours in advancedoes not count as ‘holiday substitution’; in that case, the holiday-work premium must be paid.

There is also a separate system that compensates with leave instead of paying the holiday-work premium, caled the ‘compensatory leave system’. This is based on Article 57 of the Labor Standards Act and likewise requires a written agreement with the workers’ representative. In particular, if a 50% premium arose for holiday work, that rate must be reflected in the leave. For example, if you worked eight hours on a holiday, you must be granted 12 hours of paid leave, which is 1.5 times, rather than simply eight hours off.

If a company unilaterally ordered Chuseok work and substitute leave without such a labor-management agreement, it must pay the holiday-work premium for Chuseok work.

Q. The company tells me to substitute one day of the break with a day of annual leave. Can the company force me to use annual leave?

A statutory public holiday such as Chuseok itself cannot be processed as an individual day of annual leave. This is because, for workers who work at least 15 hours per week at establishments with at least five employees, public holidays are already legally guaranteed paid days off.

Q. The company says, “Come in even on Chuseok.” If I refuse to report, will it be treated as absence without leave?

Public holidays such as Chuseok are statutory paid holidays, so in principle there is no duty to provide labor. That said, you cannot automatically refuse a company’s instruction to work solely because it is a public holiday. The Labor Standards Act does not uniformly prohibit working on public holidays. If a company has employees work on a public holiday, the law requires it to provide compensation by paying the holiday-work premium, among other measures.

However, it is also difficult to immediately deem it absence without leave just because a worker did not follow the company’s instruction to come in. Whether the instruction to work on that holiday is a legitimate order must be judged in light of the employment contract, work rules, collective agreement, and customary scheduling practices.