SOUTH KOREA Law and Practice Contributed by: Sihoon Yang, Young Min Kim, Jung Mo Hong and Douglas Hwang, Yoon & Yang LLC
may request short-term family-care leave urgently to care for their family on the grounds of disease, accident or senility, or to urgently care for their chil - dren. If short-term family-care leave is requested, an employer is obliged to grant up to ten days of leave per year, which may be taken in increments as short as a single day. The number of days taken as short- term family-care leave is counted towards the ordinary Menstrual leave is covered under Article 73 of the Labor Standards Act. Employers must grant one day of unpaid menstrual leave per month upon request from a female employee. Confidentiality and Non-Disparagement Agreements There are no provisions under the South Korean labour laws that restrict employers from requiring confidentiality and non-disparagement obligations from their employees. Therefore, employers may law - fully enter into confidentiality and non-disparagement agreements with employees. An employee’s breach of such agreements would enable their employer to take disciplinary action. Furthermore, if an employer suffers damages from an employee’s breach of con - fidentiality and non-disparagement agreements, then the employer would be able to seek civil damages. In addition to contractual agreements on confidentiali - ty, trade secrets – as defined under the Unfair Compe - tition Prevention and Trade Secret Protection Act (the “Trade Secret Act”) – are legally protected. According to Article 2 of the Trade Secret Act, trade secrets refer to information (including production methods, sale methods and useful technical or business informa - tion for commercial activities) that: • is not publicly known; • has been maintained as a secret; and • has independent economic value. family-care leave. Menstrual leave In other words, for a trade secret to be protected under the law, it must be undisclosed, kept confidential and useful. Undisclosed trade secrets are those that are not publicly known, and the confidentiality element requires the trade secret to be a secret that deserves
legal protection. Lastly, a trade secret is useful if it has independent economic value. Therefore, as long as a trade secret satisfies all three of the above-mentioned requirements, then a person (including an employer) may request a prohibition or preventative order from the court against any person (including an employee) who infringes or is likely to infringe trade secrets if the business interest of the employer who possesses the trade secrets suffers damages or is likely to suffer damages due to such infringement (see Article 10 (1) of the Trade Secret Act). Employee Liability South Korean labour laws do not have provisions that restrict or limit an employee’s contractual or tort liabilities. However, the South Korean Supreme Court has previously held that where an employer suffers direct damages due to an employee committing a tortious act while performing their work, then such employer’s right to claim damage compensation from the employee is limited – based on the notion of fair distribution of the damages – to an amount that is deemed appropriate under the principle of good faith. In this regard, employee liability can be deemed to be partially limited. On a separate note, the obligations of employees are not expressly governed under the Labor Standards Act. Rather, employees’ obligations are stipulated under the employers’ rules of employment. Some of the common obligations of employees include: • arriving at work on time; • not holding concurrent positions; • keeping secrets acquired in connection with work confidential; • not destroying or removing equipment or facilities from the company; • performing work in a diligent manner in good faith. Breach of such obligations and responsibilities may subject the relevant employees to disciplinary action. • not engaging in unlawful conduct; • expending full effort at work; and
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