The term worker under Korean labor laws (i.e., Labor Standards Act of Korea) is someone who provides labor pursuant to his or her employer’s instructions or directions in return for wage compensation.

The most important factors for classifying someone as a worker are, among other things, (i) whether the person receives instructions or directions from an employer, so there exists a superior/subordinate relationship and (ii) whether the wages the person receives is of a nature that compensates for the labor he or she provided.

It is important to know who fits into the concept of a worker under Korean labor laws because only persons who are regarded as workers could be afforded protection under labor laws and also exercise the rights stipulated thereunder. Conversely, the concept of an employer is also necessary to identify peoples who would have obligations and responsibilities pursuant to the relevant labor laws.

When determining whether someone is a worker, a title or position of that someone is irrelevant. For instance, a high-ranking officer of a company holding such title as an executive director could be regarded as a worker if the officer provides labor pursuant to the instructions of a company president (or owner) and receives wages in return. In another instance, a person who holds a title of a manager may fit into the employer category if the manager is in charge of labor matters within the company and thus issues instructions or directions to company workers.

So there could be a situation in which a person could simultaneously be both a worker or an employee (i.e., having a dual status) if that person provides labor pursuant to a company president’s instructions and receives wages for such labor and at the same time manages labor operations within the company at the instruction of the company president.

It should also be noted that the concept of worker under Korean labor laws is on the basis of an employment contract. If a certain person provides labor on the basis of a contract other than employment contract, such as a contract for specific undertaking(s) or a commission contract (that is based on an independent relationship as opposed to a superior/subordinate relationship relevant to an employment contract), then the person providing labor under such non-employment contract cannot receive protection afforded under Korean labor laws.

However, if a person provides labor under a non-employment contract such as a contract for a specific undertaking but, in fact, the person provides labor as if there is a superior/subordinate relationship between the person and the contracting company, then the sort of independent contracting arrangement appearing on the outside may be set aside and that the person may be regarded as a worker entitled to protection under labor laws.

Lastly, taking an example of a foreign industrial trainee, if the purpose of training is to give the trainee an opportunity to learn technical expertise or other relevant knowledge, then the industrial trainee cannot be a worker under Korean labor laws. However, if and to the extent a certain foreign industrial trainee does not stop short of receiving training but also provides labor pursuant to company instructions and receives certain compensation for it, then the trainee may be considered as a worker under Korean labor laws.