Supreme Court: Employees Not Working on Paid Holidays Should Be Excluded from 'Regular Workers'

Court: "Able to Properly Reflect Normal Usage Conditions"

The Supreme Court has ruled that workers who rest on paid weekly holidays are not included in the number of regularly employed workers. The number of workers regularly employed at a workplace serves as a criterion for determining the applicability of the Labor Standards Act provisions, such as extended, night, and holiday work.

The Supreme Court's Third Division (Presiding Justice Lee Heung-gu) announced on the 28th that it upheld the lower court's ruling, which acquitted Mr. A of some charges related to violations of the Labor Standards Act and the Minimum Wage Act.

Mr. A was prosecuted for paying wages below the minimum wage while operating a restaurant in Busan, employing three full-time workers who worked six days a week and several part-time workers.

The prosecution argued that when calculating the number of regular workers, those who did not actually work on paid holidays should be included. They judged that Mr. A’s restaurant qualified as a workplace with five or more employees, making it subject to the Labor Standards Act’s provisions on additional pay for extended, night, and holiday work, and thus applied charges of violating the Minimum Wage Act and the Labor Standards Act against Mr. A.

However, both the first and second trials ruled that workers who did not actually work on paid holidays should not be counted in the total number of regular workers. Nonetheless, some charges related to Mr. A’s failure to pay severance pay were upheld, and he was fined 500,000 won.

The Supreme Court also agreed with the lower courts’ judgment. It ruled that paid holidays occur regularly every week, and workers who do not actually work on those days should be excluded from the count of regularly employed workers.

The court stated, "Excluding workers who do not actually work on paid holidays from the number of regularly employed workers properly reflects the usual employment status of the workplace," and added, "Excluding them does not cause difficulties for employers or workers in determining the applicability of the Labor Standards Act in advance, thus not undermining legal stability and predictability."

This content was produced with the assistance of AI translation services.