Summary of probationary workers in Korea

1. What is a probationary employee?

• A probationary employee refers to an employee who has been officially employed as a worker and is receiving education, training, or other programs according to the company's needs.
  As a probationary employee has a complete employment contract, unlike a fixed-term employee with a set probationary period, labor laws are fully applied. Therefore, to dismiss a probationary employee, there must be a justifiable reason under Article 23 of the Labor Standards Act, as the employer does not have discretionary power to terminate them during the probationary period.

 

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2. Working conditions for probationary employees

● Probationary period

• There is no legally prescribed period for probation, but private companies generally apply three months according to the Labor Standards Act and the Minimum Wage Act.
• Deletion of Article 16 of the Enforcement Decree of the Labor Standards Act, which defines probationary workers (July 16, 2019).
• If an employer terminates an employee who has been employed for less than three months, the employer may not be required to provide advance notice of termination.
• The reduction of minimum wage can be applied to a probationary period of 3 months.

 

● Statutory Working Conditions

• Full application of the Labor Standards Act, but exemption from the advance notice of dismissal provisions
• During the probation period of up to 3 months after signing a work contract of 1 year or more, employees must be paid at least 90% of the minimum wage
  → For work contracts of less than 1 year, the reduction cannot be applied (100% of the minimum wage must be paid)
• For jobs classified as simple labor, 100% of the minimum wage must be applied
  • Simple laborers in construction and mining / couriers, food and other delivery workers, loading and unloading laborers, movers, simple packaging workers, simple manufacturing workers, simple product inspection workers / cleaners, environmental beautification workers, recycling collectors / building management workers, ticketing staff, apartment security guards / housekeepers, childcare assistants / kitchen helpers, fast food preparers, sales-related simple laborers such as gas station attendants / parking lot attendants, laundry workers
• The probation period is not included in the calculation of the average wage (Article 2 of the Enforcement Decree of the Labor Standards Act)

 

● Contractual labor conditions

• It is essential to include legal provisions on the employment contract and have it signed or sealed in a separate document.
• If the wage is above the legal standard, it can be determined lower than that of a regular employee when concluding a labor contract.
• Wage adjustment rate during the probationary period
  • During the probationary period, the wage can be set lower than the actual salary through the labor contract, employment rules, etc., but there is no law governing "how low it can be set."
  • In most cases, the standard is set by the employment rules, and the wage reduction rate during the probationary period can be applied through individual labor contracts.