Labor Law 101_003: I have to go back home. I broke the contract. Can I get paid?

Case: I have a fixed-term contract with my current employer. I have an unforeseen, urgent situation back home, and I must go home soon. The employer insists that I should pay for the substitute, and she withholds my salary for the month that I already worked for.

Is it legal?

Answer: No, you are entitled to your salary.

According to provision of Article 660 of Civil Act, in case of no-fixed term contract, an employee can terminate a contract at any time.
In case of termed contract, if an employee terminates it before the term ends, he/she is liable for the damage.

So can the employer deduct damage from my salary?
NO.

According to Labor Standards Act, the employer cannot deduct such alleged damage from the salary.  The LSA article 43 clearly provides that "payment of wages shall be directly made in full to workers in currency."
Thus, an employer cannot withhold one's salary for damage.

How about set-off? A set-off is the right of a debtor to balance mutual debts with a creditor. 
One's right to salary cannot be set-off by any debt he/she owes. 
Also the court ruling backs up such principle.  Supreme Court held that one's wage or severance pay cannot be set-off by the damages he/she is liable at workplace. (Supreme Court decision, 75다 1768).

On the employer's side, to claim for damage, he/she should file a lawsuit and prove the amount of damage with sufficient evidence.  The court will decide the amount of damage and then the employer can ask such damage to the employee. In many cases, it is very complicated to prove the actual damage, since most of the time the job can be substituted without much trouble.

If the employer insists withholding your salary, you can file a complaint with your local labor office.
The employer may face criminal charge.  He/she shall be punished by imprisonment for not more than 3 years or by a fine of not exceeding 20 million won (LSA Article 109).
You can also file a civil lawsuit and seize his/her property provisionally.

Please remember often you can be paid by filing a complaint to the local labor office and let the officer call your employer to request payment. 

If you have further questions regarding this topic, please contact me.

I am Hyunjoo Ahn, a lawyer with Korean and US(CT) law licenses.
I have experience in both legal systems and understand the unique situation of foreign residents in Korea. My practice area include civil, criminal, administrative, contract, employment, family issues in Korea law, and US immigration law.

You can reach me via email or by phone.

I look forward to assisting you in any legal matter you may have.

Thanks!

Hyunjoo Ahn, Esq. (JD, LLM)

Law Office of Hyunjoo Ahn
Member of Korean Bar Association
Member of Connecticut Bar Association

540-1, Sangmu Building, Sangmu-jungang-ro, Seo-gu, Gwangju, Korea
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