Archives for January 2008

United States’ Hands Tied by Unfair SOFA?

by Brendon Carr

The Korea Times reports that in August Korean aircrews and planes will be training at Nellis AFB, Nevada for the first time. As for me, I am halfway hoping that one of the Korean military members gets into a traffic accident, or even flips out and commits some sort of crime. We are talking about servicemembers on temporary duty, so drunk driving seems the best bet.

So why am I rooting for some kind of misfortune? It’s not because I dislike Koreans, or any members of the aircrews personally. It’s because some kind of a legal entanglement in the Nevada desert would be a teachable moment for the Korean public about the reciprocal nature of the US-Republic of Korea Status of Forces Agreement, a bilateral treaty the “unfairness” of which is an article of faith among the populace protected by US Forces Korea.

Korean aircrews, while deployed in the United States, will receive exactly the same legal and administrative protections and privileges afforded to American troops here in Korea. An accident or incident will provide a chance to think on that a bit.

But I wouldn’t count on it: The deployment is scheduled to run only two weeks.

UPDATE 1/15: Doh! Korea Law Blog reader “WayneChang” left a comment that alerted me to a fundamental mistake, one which is pretty embarrassing: The US-ROK SOFA is not, now that I look at it again after 15 years, a reciprocal agreement like the NATO SOFA. It concerns legal and administrative protections and privileges afforded to American troops in Korea, but does not address the status of Korean forces in the US—in this respect it’s unlike the NATO agreement. Pretty dumb of me, especially since I’m indignant about the other aspects of the issue. This is my own teachable moment.

My comment in response to Wayne was banged out in frustration. After chiding Wayne not to repeat untruths fueled by emotion, I did the very same thing.

The comment thread was pretty good, but that fundamental goof requires me to pull my comment and Wayne’s response so that I can do my research again. Anyway, thanks, Wayne—I’m not too big to admit mistake and the issue is important enough to me to want NOT to repeat nonsense. Let me get my facts straight and I’ll pick it up later. 

January 13, 2008 | Filed Under Uncategorized | 24 comments

Public or Official Holidays in Korea

by Brendon Carr

Today I received in the management-side employment lawyer mailbag a client inquiry about public holidays in Korea—a question which comes in from time to time from clients establishing or revising their Work Rules. On top of the 15 (or more depending on seniority) days of annual leave entitlement, how many public holidays are employers required to observe? How much down time does a Korean employee get, besides the usual weekend?

Other than Labor Day (May Day), there are in fact no official public holidays mandatory on Korean employers.

However, the government does have lists of government holidays applicable to public offices, which days are widely observed by employers in Korea. Many employees of foreign-invested companies in Korea will be expecting to have the following days off—at least 16 per year, but more depending on election schedules—as “official” holidays:

New Year’s Day (January 1)
Three days off around Lunar New Year (day before, day of, and day after) *
March 1 Independence Movement Memorial, or “3-1 Day” (March 1)
Labor Day (May Day)
Children’s Day (May 5)
Buddha’s Birthday *
Memorial Day (June 6)
Independence Day (August 15)
National Foundation Day (October 3)
Hangul Day (October 9)
Three days off around Chuseok ("Thanksgiving") autumn harvest day (day before, day of, and day after) *
Christmas Day (December 25)
Dates of public elections for President and National Assembly

The ones I marked with an asterisk fall on different days every year, as they are based on the lunar calendar.

The foregoing days are drawn from three sources: (i) the Labor Day Act, which establishes May 1 as a mandatory official public holiday applicable to all employers in Korea; (ii) the State Holidays Act, which establishes 3-1 Day, Constitution Day, Independence Day, National Foundation Day, and Hangul Day as government holidays; and (iii) the Ministry of Government and Home Affairs (MOGAHA)’s Regulation on Closure Days for Public Offices, which establishes all the foregoing days with the curious exception of Constitution Day and Hangul Day. The Regulation in fact abolished observance of Constitution Day with effect from Jan. 1, 2008.

Abolition of the Constitution Day observance reminds me of this fact: Employers who have specifically enumerated their list of paid days off in the company Work Rules will be stuck with their list. If Constitution Day is specifically named, the fact that the government stopped observing it will not excuse the employer its promise to employees. So if I were advising someone establishing Work Rules for the first time, I would include recognition of public holidays by reference to the statute or regulation establishing them, rather than the name of the holiday itself.

And no, I haven’t billed the client for answering this question. That’s just how I roll: Ticky-tack general-information questions like this one are things that I’m not comfortable charging $1000 or more to answer, just because the typing took me some time. My time is actually more valuable than that.

January 4, 2008 | Filed Under Employment Law | 2 comments