After a harassment report, four employer duties carry fines in Korea

This guide is for employers, HR staff and managers at companies in Korea, including foreign-invested companies, and for employees who report harassment. Korea's workplace harassment provisions do not punish the harasser, unless the harasser is the employer. Fines fall on the employer when it skips required steps after a report. There are four such points: investigating, acting on the victim's request, acting against the harasser, and keeping the investigation confidential.

Fines target the employer's procedure

Article 76-2 of the Labor Standards Act (근로기준법) prohibits workplace harassment (직장 내 괴롭힘), but it only states the prohibition. Sanctions depend on whether the company followed the procedure. Article 116(2)(2) lists breaches of paragraphs 2, 4, 5 and 7 of Article 76-3 as subject to an administrative fine (과태료) of up to ₩5 million. Those four paragraphs are the four things a company must do.

There is one exception. Under Article 116(1), if the employer itself harasses someone in breach of Article 76-2, the fine is up to ₩10 million. Here the employer also includes a relative of the employer under Article 767 of the Civil Act (민법), as set by Presidential Decree, who works at that business. Cases where the head of the company is the harasser are handled under this separate provision.

The four points that carry a fine

Paragraphs 3 and 6 are not on the fine list, but they carry their own weight. Paragraph 3 requires the employer to take suitable measures, such as a change of workplace or an order of paid leave, where needed to protect the victim or the person claiming to be a victim (피해근로자등) during the investigation. It also says the employer must not take measures against that person's wishes. Moving a victim to another department in the name of protection runs into this rule. Paragraph 6 forbids dismissal or other unfavorable treatment of the person who reported and of the victim. A breach of paragraph 6 falls under criminal penalties (벌칙), not administrative fines.

The procedure, step by step

1. Anyone who learns of workplace harassment may report it to the employer (paragraph 1).
2. The duty to investigate also arises when the company learns of harassment without a report (paragraph 2).
3. The investigation must be carried out without delay, with the parties and others concerned, and objectively (paragraph 2).
4. During the investigation, consider protective measures for the victim (paragraph 3).
5. Protective measures must not go against the victim's wishes (paragraph 3, second sentence).
6. If the investigation confirms harassment, take measures at the victim's request (paragraph 4).
7. Take measures against the harasser without delay, even without a request (paragraph 5).
8. Before discipline or other measures, hear the victim's opinion (paragraph 5, second sentence).
9. Do not treat the person who reported or the victim unfavorably (paragraph 6).
10. The investigator, those who receive reports on the investigation and others involved must not disclose secrets (paragraph 7).
11. Reporting to the employer, or giving information at the request of a relevant authority, is excluded (proviso to paragraph 7).

Many companies miss the difference between paragraphs 4 and 5. Measures for the victim require a request. Measures against the harasser must be taken whether or not anyone asks. Deciding to let the matter drop because the victim said nothing leads to a breach of paragraph 5.

Whether the disciplinary procedure itself is valid is a separate question. If the measures end in a dismissal, see Separation certificates and loss codes 23 and 26.

Who investigates, and how far

The law only says the investigation must be objective. It does not say who must carry it out. So an HR manager often runs it alone. If the harasser is that manager's superior or close to the head of the company, the requirement of objectivity collapses.

The basic approach is an investigation committee (조사위원회) with several members that excludes anyone in a direct reporting line with the harasser or the victim. In a small workplace where a neutral internal panel is impossible, you can outsource the investigation to an outside labor attorney firm (노무법인) or a lawyer. In that case, it is safer to state in the contract that the outside investigator is also bound by the confidentiality duty in paragraph 7.

Set the scope in advance. Decide when you start whether to look only at the facts in the report or also at other conduct that comes to light during the investigation. If you leave this open, the investigation drags on and moves away from the "without delay" requirement.

See also Filing a change to the work rules.

Checklist: mistakes to avoid and records to keep

Investigations often break down in these ways. Avoid them:

• Starting the investigation only after reviewing the report for several days
• Having one HR team leader run the investigation alone
• Calling the harasser and the victim into the same room to confront each other
• Letting interim findings spread around the department
• Sharing the findings by email with many recipients
• Moving the victim to another team without asking their wishes
• Ending with a verbal warning after harassment was confirmed
• Not hearing the victim's opinion before the disciplinary committee meets
• Not keeping an investigation report
• Letting the victim's evaluation or assignment suffer after the report

Without records, you cannot prove that an investigation took place. At a minimum, keep these dates in order:

• Date the report was received
• Date the investigation started
• Interview dates and attendees
• Date the investigation ended
• Date measures were decided and date they were notified