Tuesday, June 4, 2019

May employers change the time of employees’ paid leave?




For workers, paid leaves are the time to recharge themselves. Labor Standards Act (hereafter referred to as the “Act”) stipulates that employers shall grant paid leaves to employees. When are paid leaves given? It is when workers claim according to the Act. By the way, the Act also mentions that employers may change the time of the paid leave in case the paid leave greatly disrupts business. Please refer to “the fifth paragraph” of the Article of the Act as follows;

Article 60 (Annual Paid Leave)
(1)         Every employer shall grant any employee who has worked not less than 80 percent of one year a paid leave of 15 days. <Amended by Act No. 11270, Feb. 1, 2012>
(2)         Every employer shall grant any employee who has continuously worked for less than one year or who has worked less than 80 percentage of one year one paid-leave day for each month during which he/she has continuously worked. <Amended by Act No. 11270, Feb. 1, 2012>
(3)         Deleted. <by Act No. 15108, Nov. 28, 2017>
(4)         Every employer shall grant any employee who has continuously worked for not less than three years the paid-leave days that are calculated by adding one day for every two continuously working years not including the first one year to the 15 paid-leave days referred to in paragraph (1). In this case, the total number of paid-leave days, including the additional paid-leave days, shall not exceed 25 days.
(5)         Every employer shall grant the paid leave referred to in paragraphs (1) through (4) at the time when an employee files a claim therefor, and pay the employee an ordinary wage or an average wage during the period of paid leave as prescribed by the rules of employment, etc.: Provided, That in the event that granting the employee a paid leave at the time when such employee wants to take the paid leave greatly impedes the business operation, the relevant employer may change the time of the paid leave.  

Then, when is “the time when such employee wants to take the paid leave greatly impedes the business?” In other words, when may the employer change the time of the employee’s paid leave? Courts consider the tasks the employees take charge of, the workload other employees should handle on behalf of the employee, the possibility of putting in replacement, and the requests of paid leave by other employees judging that employ may change the time of leave. Latest court precedents suggest courts rarely accept that employers may change the time of the paid leave as the paid leave greatly impedes their business. If your employer demands you to change the time of paid leave after your request, you may claim that he or she shall prove the possibilities of the business being greatly impeded by your paid leave. For further inquiries, please feel free to contact me at yhwang618@gmail.com.


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