배움과 공유의 시간

the statute of limitations in a labor action

(1) General prescription of labor arbitration

The time limit of labor arbitration is generally one year, and the worker is calculated from a date when he or she knows his or her rights have been violated or rightly considered to be. In the case of a general labor dispute, rights relief shall not be granted if labor arbitration is not applied within one year after the occurrence of a rights violation. In addition, a worker shall not receive a right relief from the statute of limitations unless he or she raises a labor arbitration within one year of retirement.

Labor claims twice as much, but lost due to the statute of limitations
Sohn joined the company as a truck driver from 2010 年1 and 1 day, and paid 5,000 won per month, but he continued to fail to sign a written labor contract. However, the relationship with the boss deteriorated to 2015 해제1111, and the company was relieved of its labor relations with the company for economic compensation Two months after his retirement, Sohn applied for labor arbitration from 2015 年3月1 and asked the company to pay 300,000元 (5,000x 12 months x 5 years) in double the wage difference from the failure to pass a written contract for five years.
(Explain)
The Labor Arbitration Commission rejected the workers' request, saying the labor arbitration limit was more than one year. In the case of double pay, the right to claim is extinguished if the worker does not claim quickly because the name is similar to labor compensation, but is actually a penalty (a penalty), because the statute of limitations is strictly subject to "one year" as in the case of general labor arbitration.

(2) Special prescription of labor arbitration;

Related to labor conservatism, or wages, is difficult to file a lawsuit until workers retire because of worries about losing their jobs. Thus, the Labor Dispute Arbitration Act stipulated that "labor conservatism" should not be subject to one year’s "timely" restriction, with an exception.
In other words, labor disputes arising from the overdue payment of labor remuneration (wages, overtime expenses, etc.) during the duration of the labor relationship (retirement) shall not be restricted to one year of labor arbitration, and may be filed retrospectively for issues of more than one year in the past. However, from the end of the labor relationship (retirement, dismissal, etc.) the application for arbitration shall be made within one year for labor arbitration, and the application for arbitration may be made for infringement of labor remuneration-related rights for all periods in office.
Theoretically, the company’s burden of proof is limited to two years, and workers themselves should present relevant evidence for retrospective claims exceeding two years, since unrestricted historical claims can be made for labor, but the obligation to store the records of wages is actually set at two years.
The most commonly raised overtime costs belong to "labor conservatism," so the period prior to the tenure of the office is subject to a labor arbitration claims. For a meticulous worker, unlimited retroactive claims can be made if all the evidence is carefully taken up to two years ago. However, in reality, such cases are very rare, so in general, if the company’s overtime payment is found to be true, the judgment on retroactive payment is made only for the two years under which the burden of proof is imposed.

[Management Arbitration Act for Labor Disputes]
Article27 The time limit of applying for a labor dispute is one year. The time limit for arbitration shall be calculated from the date on which the party is aware or rightly aware that the right has been infringed.  Regulations for General Time Effect
In the event of a dispute arising from a delay in payment of labor remuneration during the duration of the labor relationship, the application of arbitration by the worker shall not be limited to the effective period ("one year") of the arbitration prescribed in paragraph 1 of this Article.
However, if the labor relationship is terminated, the application shall be made within one year of the end of the labor relationship.
 Regulations for Special Time Effect

5. Response to a labor dispute

(1) Appropriate countermeasures in the event of a labor dispute

1 Pursue the settlement of labor disputes (x)
In this case, the solution was smooth.The coast may be very high, depending on the number of positions.
Also, you cannot accumulate direct experience of labor litigation, resulting in a vicious cycle of continuing to rely on the city.
Become.
2 Promote a private negotiation solution with workers (x)
This gives workers the impression that the company is on edge, so it is likely to increase the level of demand and complicate the agenda. Prior to the revision of the Labor Arbitration Act, private negotiations by the management should never be pursued.
3 Finding a professional labor lawyer and preparing for litigation (o)
In case of a competent lawyer, even if the company is disadvantageous in the case of a labor lawsuit, it can be adjusted to the proper extent by communicating with the arbitration committee or the judge.

(2) Handling of labor arbitration

1 Analyze whether a worker's request for arbitration is reasonable
The management first analyzes whether the workers' arbitration claims are reasonable and legal, and analyzes and summarizes reasonable and unreasonable demands among the contents raised.
2 Progress of investigation on facts and grounds stated by workers
The facts and grounds of the workers' statements in the application for labor arbitration shall be investigated and the facts shall be confirmed.
Identify what is and is not true.
3 Aggressive collection of evidence
Collect and organize evidence to be submitted for refutation on matters where the worker's statement does not conform with the facts.
4 Pre-analysis and prediction on the direction of the dispute plan
An analysis of labor arbitration claims by workers and related evidence collected
On the basis of that, the primary judgment is on the outcome of the agenda.
5 Preparing a solution
A solution is prepared after pre-analysis and prediction is made. Present a "coordination" plan with the worker and review whether adjustment should be made or terminated by a ruling. If you're working with a worker
If "reconciliation" is required, the company shall prepare the minimum negotiating conditions to be presented during "adjustment".
Some of the malicious issues are lack of evidence, and the company may not agree to the adjustment even if it is at a disadvantage, and may choose a time-consuming and cost-effective way of putting pressure on the opponent while continuing with the first and second trials in consideration of their impact on other employees.

(3) Precautions during the handling of labor disputes

1 Avoid escalation
In the event of a labor dispute, a fundamental problem exists in the company, and it is used as an employee.
If there is a possibility of expansion, it can be negotiated in an unexpected direction.
It is good to prevent the situation from escalating.
A worker demanded 2,000 billion won in compensation for failing to pay social insurance when he moved, but the company refused. The employee then filed a complaint with the labor watchdog and had to pay hundreds of thousands of yuan in fines as inspection results revealed many illegal labor practices.
2 Importance of Labor Arbitration
In the absence of attendance at the Labor Arbitration, the company shall be deemed to have given up the right to answer and refute, and arbitration is highly likely to make adverse decisions to the company based on the evidence submitted by the worker. Therefore, rather than let it go and give up, the company should actively respond to lawsuits, minimize losses, and try to shift to its advantage.
3 Do not give up prematurely even on a high possibility of losing.
Admitting the opponent's evidence under any circumstances. It is important to note that the defeat should not be rashly acknowledged, and that even if there is virtually an illegal part of the company’s action, his claim, unless there is sufficient evidence, is equally unlikely to win the support of the arbitration committee or the court.

the statute of limitations in labor proceedings

(1) General prescription of labor arbitration

The time limit of labor arbitration is generally one year, and the worker is calculated from a date when he or she knows his or her rights have been violated or rightly considered to be. In the case of a general labor dispute, rights relief shall not be granted if labor arbitration is not applied within one year after the occurrence of a rights violation. In addition, a worker shall not receive a right relief from the statute of limitations unless he or she raises a labor arbitration within one year of retirement.

Labor claims twice as much, but lost due to the statute of limitations
Sohn joined the company as a truck driver from 2010 年1 and 1 day, and paid 5,000 won per month, but he continued to fail to sign a written labor contract. However, the relationship with the boss deteriorated to 2015 해제1111, and the company was relieved of its labor relations with the company for economic compensation Two months after his retirement, Sohn applied for labor arbitration from 2015 年3月1 and asked the company to pay 300,000元 (5,000x 12 months x 5 years) in double the wage difference from the failure to pass a written contract for five years.
(Explain)
The Labor Arbitration Commission rejected the workers' request, saying the labor arbitration limit was more than one year. In the case of double pay, the right to claim is extinguished if the worker does not claim quickly because the name is similar to labor compensation, but is actually a penalty (a penalty), because the statute of limitations is strictly subject to "one year" as in the case of general labor arbitration.

(2) Special prescription of labor arbitration;

Related to labor conservatism, or wages, is difficult to file a lawsuit until workers retire because of worries about losing their jobs. Thus, the Labor Dispute Arbitration Act stipulated that "labor conservatism" should not be subject to one year’s "timely" restriction, with an exception.
In other words, labor disputes arising from the overdue payment of labor remuneration (wages, overtime expenses, etc.) during the duration of the labor relationship (retirement) shall not be restricted to one year of labor arbitration, and may be filed retrospectively for issues of more than one year in the past. However, from the end of the labor relationship (retirement, dismissal, etc.) the application for arbitration shall be made within one year for labor arbitration, and the application for arbitration may be made for infringement of labor remuneration-related rights for all periods in office.
Theoretically, the company’s burden of proof is limited to two years, and workers themselves should present relevant evidence for retrospective claims exceeding two years, since unrestricted historical claims can be made for labor, but the obligation to store the records of wages is actually set at two years.
The most commonly raised overtime costs belong to "labor conservatism," so the period prior to the tenure of the office is subject to a labor arbitration claims. For a meticulous worker, unlimited retroactive claims can be made if all the evidence is carefully taken up to two years ago. However, in reality, such cases are very rare, so in general, if the company’s overtime payment is found to be true, the judgment on retroactive payment is made only for the two years under which the burden of proof is imposed.

[Management Arbitration Act for Labor Disputes]
Article27 The time limit of applying for a labor dispute is one year. The time limit for arbitration shall be calculated from the date on which the party is aware or rightly aware that the right has been infringed.  Regulations for General Time Effect
In the event of a dispute arising from a delay in payment of labor remuneration during the duration of the labor relationship, the application of arbitration by the worker shall not be limited to the effective period ("one year") of the arbitration prescribed in paragraph 1 of this Article.
However, if the labor relationship is terminated, the application shall be made within one year of the end of the labor relationship.
 Regulations for Special Time Effect

5. Response to a labor dispute

(1) Appropriate countermeasures in the event of a labor dispute

1 Pursue the settlement of labor disputes (x)
In this case, the solution was smooth.The coast may be very high, depending on the number of positions.
Also, you cannot accumulate direct experience of labor litigation, resulting in a vicious cycle of continuing to rely on the city.
Become.
2 Promote a private negotiation solution with workers (x)
This gives workers the impression that the company is on edge, so it is likely to increase the level of demand and complicate the agenda. Prior to the revision of the Labor Arbitration Act, private negotiations by the management should never be pursued.
3 Finding a professional labor lawyer and preparing for litigation (o)
In case of a competent lawyer, even if the company is disadvantageous in the case of a labor lawsuit, it can be adjusted to the proper extent by communicating with the arbitration committee or the judge.

(2) Handling of labor arbitration

1 Analyze whether a worker's request for arbitration is reasonable
The management first analyzes whether the workers' arbitration claims are reasonable and legal, and analyzes and summarizes reasonable and unreasonable demands among the contents raised.
2 Progress of investigation on facts and grounds stated by workers
The facts and grounds of the workers' statements in the application for labor arbitration shall be investigated and the facts shall be confirmed.
Identify what is and is not true.
3 Aggressive collection of evidence
Collect and organize evidence to be submitted for refutation on matters where the worker's statement does not conform with the facts.
4 Pre-analysis and prediction on the direction of the dispute plan
An analysis of labor arbitration claims by workers and related evidence collected
On the basis of that, the primary judgment is on the outcome of the agenda.
5 Preparing a solution
A solution is prepared after pre-analysis and prediction is made. Present a "coordination" plan with the worker and review whether adjustment should be made or terminated by a ruling. If you're working with a worker
If "reconciliation" is required, the company shall prepare the minimum negotiating conditions to be presented during "adjustment".
Some of the malicious issues are lack of evidence, and the company may not agree to the adjustment even if it is at a disadvantage, and may choose a time-consuming and cost-effective way of putting pressure on the opponent while continuing with the first and second trials in consideration of their impact on other employees.

(3) Precautions during the handling of labor disputes

1 Avoid escalation
In the event of a labor dispute, a fundamental problem exists in the company, and it is used as an employee.
If there is a possibility of expansion, it can be negotiated in an unexpected direction.
It is good to prevent the situation from escalating.
A worker demanded 2,000 billion won in compensation for failing to pay social insurance when he moved, but the company refused. The employee then filed a complaint with the labor watchdog and had to pay hundreds of thousands of yuan in fines as inspection results revealed many illegal labor practices.
2 Importance of Labor Arbitration
In the absence of attendance at the Labor Arbitration, the company shall be deemed to have given up the right to answer and refute, and arbitration is highly likely to make adverse decisions to the company based on the evidence submitted by the worker. Therefore, rather than let it go and give up, the company should actively respond to lawsuits, minimize losses, and try to shift to its advantage.
3 Do not give up prematurely even on a high possibility of losing.
Admitting the opponent's evidence under any circumstances. It is important to note that the defeat should not be rashly acknowledged, and that even if there is virtually an illegal part of the company’s action, his claim, unless there is sufficient evidence, is equally unlikely to win the support of the arbitration committee or the court.

Based on the above-mentioned agenda, let's look at the issue of proving and distributing overtime costs in case of labor litigation.
1 Workers claiming overtime pay submitted rudimentary evidence: Some of the original absenteeism and tardiness records signed by the department manager in the above agenda have been obtained and submitted by the worker, and this record lists weekend overtime work every week.
2 The Company presents evidence that overtime work does not exist: In the above issue, it has submitted a wage statement signed by the worker. However, due to the wide gap between the number of working days on the wage statement and the number of absenteeism and absenteeism and tardiness records submitted by the workers, the court did not acknowledge its veracity.
3 If the company fails to verify paragraph 2 and also fails to submit a valid absenteeism and tardiness record, the court shall acknowledge the claim of overtime work by the workers based on paragraph 1.

As soon as employee dissatisfaction builds up and opinions begin with the company, it should be considered that employee evidence collection begins. In particular, overtime costs are the most frequently filed item at the time of retirement, so the company needs to pay attention to the following points to ensure that unfavorable evidence does not leak:
o If overtime expenses are not accurately calculated and paid, the workbook should be written, e-mail, Weissin, or the work group should be posted to order extra work.
o the act of specifying Saturday's normal work schedule in the labour contract, or employment rules;
o Write overtime hours on the wage table and other wage items (e.g. overtime pay, etc.) instead of overtime expenses;
an act of payment
o After overtime is completed, the written evidence provided in other name (benefit, subsidy) other than the cost of overtime is not included in the report;
the act of leaving behind

3. Working-level measures for overtime management

(1) Establishing an approval system for overtime review and approval - Control of unbridled overtime work

Article 41 of the Labor Law of China states, "User may extend working hours after consultation with the public and workers, by the need for production management." In other words, overtime refers to the task that the user gives instructions and the staff accepts and proceeds. It is not acceptable for a worker to work overtime on his own, despite the absence of a company's demand.
If the company has a overtime review approval system, the employee must obtain the company's approval in advance if he or she is unable to complete the normal work duties during normal working hours, otherwise it cannot be recognized as overtime. In other words, it can be recognized as a overtime work only if the company has arranged the overtime work or if the employee has applied for approval from the company in advance.
The company should avoid unnecessary disputes caused by lack of an arrangement or uncertainty of the arrangement by clarifying the implementation of the overtime review and approval system, without going through the overtime review process, and by making it clear that the overtime work is not subject to payment for an hour.

[Example] Are overtime work recognized in the absenteeism and tardiness record table?
Mr.Wang remained alone in the office every day and worked hard even after work hours had passed. After two full years of service, Mr.Wang tendered his resignation for a former job and at the same time charged the company with two years of overtime expenses. The company was incomprehensible. Because he never asked Wang to work overtime, and he voluntarily stayed in the office after work. In addition, for two years Mr.Wang had never asked the company for overtime. Therefore, the company replied that overtime payment was not necessary.
(labor arbitration result)
Mr. Wang's absenteeism and tardiness records show that he spent more than eight hours each day at the company
but there's evidence that he worked at the company after work
I didn't been submitted. The company has a clear overtime screening and approval system, but applies for overtime work.
Instead, he stayed at the company to handle business. So, Mr. Wang's behavior is...
I reject the claim because it does not belong to overtime.

As shown in the above example, a simple absenteeism and tardiness record can only prove that the employee has been in the company for a company.
Only. However, if the company does not have a "work permit system," the company will be in a difficult position to prove that its employees did not work overtime by using other evidence in the event of a labor action.

[working-level measures]

1 The employment rules stipulate the overtime review and approval system.
The overtime work shall be carried out after obtaining approval from the supervisor in advance using the application for overtime work.
[Example] "The company does not advocate extra work for the employees. The extra work of the staff must be done by the company.
It shall be approved or arranged and shall be approved by the company or by an employee without the company.
Voluntary overtime is not recognized as overtime."

2 A work permit system shall be specified in the labor contract.
In addition to the employment rules, the labor contract stipulates the approval system for overtime work. There is a legal risk if there is no commitment to labor contracts individually concluded 1:1 and only to employment rules. This is because if the employment rules are invalidated (e.g., employee's signature on notice, non-acquisition, etc.) the legal effect is lost.

(2) Preferred arrangements for alternative vacations

Labor laws stipulate that if extra work is given on weekends off (Tuesday and Sunday), alternative leave should be granted first. The legislative purpose is to ensure workers' right to rest first. Therefore, if overtime is ordered on the day of rest, the user may arrange the alternative leave as a priority, and in the event of a failure of the replacement vacation, the obligation to pay the overtime fee is incurred.
Since weekend overtime costs are 200 percent, it is necessary to control overtime spending first by choosing an alternative vacation. In some cases, employees refuse to arrange alternative vacations for the company after weekend overtime and ask for 200 percent of overtime fees, but there is no legal basis. However, in the case of certified and technical workers, replacement leave is generally applied to office management and business positions, as they often refuse to work overtime on weekends unless they are paid 200%.
The expiration date of alternative vacation days for overtime work on weekends is in accordance with company regulations, but it is often required to be used within three months. The legal acceptance of alternative vacations is limited to weekend overtime, and not to weekdays or legal holidays. It is a violation of labor law to grant them alternative leave when they accumulate extra work without paying extra work after ordering them to work on a weekday work.

[ Opinion on a Little Problem Related to the Thorough Implementation of Labor Law ]
Article70 If a worker is required to work on a day off, the employee shall first be given an equal amount of time off.
If it is necessary and cannot be granted a substitute vacation, based on the provisions of Article 44 (2) of the Labor Act,
Workers should be paid a premium wage (200%) of overtime hours.

(3) Rational arrangement of overtime pay riders

Except for some areas (acidity), most areas, such as Gangso-seong, Guangdong, and Shanghai, are recognized by the law enforcement agencies when the number of overtime workers is agreed within reasonable limits. For example, if a wage item is divided into several categories, the basic wage is set at approximately 70 per cent of the total, and the remainder is paid by various allowances, subsidies, and variable performance benefits, and if the basic wage is promised on the labor contract as a period of overtime, the expenditure on overtime can be reduced as much. It is important to note that, if an arrangement is not made, there is a risk that the entire wage will be recognized as a non-regular overtime period.

(4) Setting the fixed residual cost

In the case of an employee who works overtime for a certain amount of time each day, such as the driver or the production supervision of a factory, or the company that is required to work on Saturday, the total remaining hours of the month shall be set in advance and paid as a fixed overtime rate. This means that extra work is paid in advance, and the regular wage is reduced by that much, thus lowering the number of overtime
On the other hand, if a fixed overtime fee corresponding to the remaining work time of 20 hours per month is paid, an additional supplement to the overtime fee is required if the actual overtime time exceeds 20 hours.

[Example] Saturday Anti-Japanese Service Anbashi, Set Fixed Residual Expenses
For employees with a basic salary of 2,000元, the hourly overtime rate is 2000/21/75/8 =11.5元. If you work extra four hours every Saturday, it will be four hours by five times by 20 hours by 11.5 by 2 = 460 hours.
Therefore, if the basic salary of 2,000元 + fixed overtime (five hours on Saturday) is paid 460 = = 2,460위 and the wage statement states the extra work cost on Saturday, it is deemed to have been calculated and paid in advance. Without doing this, for example, if the overtime pay is set at 300元, the employee may at any time request for a supplementary payment for the difference of 160元.
Meanwhile, for example, in anticipation of a four-hour shift on Saturday, the company would have to pay an additional 20 hours per month in advance in the form of fixed overtime, but if the business conditions had actually worked eight hours on Saturday, the company would have to pay the difference from the actual overtime.

(5) Using the special working hours system - Conditions for obtaining approval from the Bureau of Labor

In the case of drivers, out-of-the-box salesmen, and advanced management jobs, the irregular work system can free them from the obligation to pay overtime. Even if it is a temporary work system, some regions, including Shanghai, Shenzhen and Honam provinces, require 300 percent of overtime pay for overtime work on legal holidays, while others are not required to pay overtime fees, whether on weekends or on legal holidays.
The comprehensive calculation work time system calculates the total amount on a given period of time, and the obligation to pay overtime costs is 150 per cent for the time that is exceeded. Compared to the standard working hours system, there is no need to pay 200% overtime for weekend overtime work, and it is possible to save a significant amount of overtime money if operated in an off-season way by reducing working hours and increasing them during peak seasons.

(6) Arrangements for labor contracts for effective working hours

The hairdresser doesn't do haircuts all day long, and when there's no customer, she's in the office.
Rest. If no arrangement is made, there is a risk that overtime charges will be filed upon retirement, saying that the entire office hours were working hours. To prevent this, a store, a hair salon, etc.
If the work intensity is not high, the atmosphere is high, and the rest area is available during the waiting period.
At the time of joining the company, the contract states that "the effective working hours of the staff are * hours per day."