Sharp early morning delivery controversy... What are the corporate working hour risk management measures?

The distribution industry's delivery system, represented by early morning delivery, has become the center of social controversy. This goes beyond simply conflict between unions, consumers, and workers, and is leading to legal and social issues being raised regarding the overall working hour calculation and management system of many companies where night work has become routine. In particular, the legal issue in the overwork debate lies in the 'calculation of actual working hours', which examines how working hours are actually composed, and this issue naturally leads to the question of whether time formally treated as rest constitutes actual work. In other words, the key question is whether the break time on paper is ‘hidden working time’ conducted under the direction and supervision of the employer. Ultimately, the core of the dispute lies in how to set the boundaries between working hours and rest times under the Labor Standards Act.

Article 54 of the Labor Standards Act stipulates that a break of at least one hour must be granted during eight hours of work. This time must be freely available to workers, free from the employer's command and supervision. The Supreme Court also ruled that all time under the employer's command and supervision constitutes working hours (2014Da74254). For example, if workers are not guaranteed free use of 'waiting time' while waiting for immediate instructions at a specific location during delivery, it is very likely that this will be recognized as working time rather than rest time. The problem is that if these hours are recognized as actual working hours, the legal risk that the company must bear is significant.

The first thing you will face is criminal punishment and wage issues for violating working hour restrictions. If formal rest time is recalculated as working hours, the company may be assessed as violating the 52-hour weekly limit (Article 50 of the Labor Standards Act), and may be subject to imprisonment for up to 2 years or a fine of up to 20 million won under Article 110 of the Labor Standards Act.

In addition, Article 56 of the Labor Standards Act stipulates that 50% of the normal wage must be paid for night work from 10 PM to 6 AM. Therefore, if it is revealed that some of the time treated as rest time was actually night work, the company must retroactively pay the missing night allowance, and may even incur the burden of late interest due to late payment. Failure to properly pay wages in this way constitutes a violation of the ‘principle of full wage payment’ under Article 43 of the Labor Standards Act, and there is also a risk of criminal punishment under Article 109 of the same Act.

Legal responsibility does not stop at wage issues. Employers have a duty of safety consideration to protect the lives and bodies of workers under employment contracts and civil law, and this becomes the basis for civil liability for damages. In addition, Article 39 of the Occupational Safety and Health Act obliges employers to prepare health measures against harmful and risk factors, including night work. If overwork is allowed to accumulate due to non-guaranteed rest periods, this may be assessed as failure to fulfill safety and health obligations and may result in additional legal liability.

There is a possibility that this will ultimately lead to a major industrial accident. Article 2 of the Serious Accident Punishment Act defines a serious industrial accident when one or more deaths occur due to an occupational disease, and Article 4 imposes an obligation on management managers to establish a safety and health management system, including identifying and improving harmful and risk factors. If you are aware of the risks of high-intensity night work such as early morning delivery, but neglect basic safety and health measures such as break time management, this may be interpreted as a violation of the duty of the manager in charge, and may result in criminal liability.

Therefore, in order to manage and control risks related to working hours, companies must establish a system that can objectively prove that actual breaks have been guaranteed. Of course, it is true that there are practical difficulties in measuring and controlling drivers' rest times in minutes and seconds due to the nature of the delivery business, which involves frequent out-of-town work and irregular travel routes. However, in legal disputes, these practical difficulties are not grounds for exemption, and the responsibility to prove the reality of the break time lies entirely with the user. Beyond simply recording break times on pay stubs, there is a need to establish an objective record management plan that can show that workers were out of the employer's direction and supervision, such as records of entering and exiting rest areas, logging out of work systems, and deactivating delivery apps. In particular, in business models that are premised on night work, such as early morning delivery, we must clearly recognize and prepare for the fact that working hour disputes are no longer just a simple issue of non-payment of wages, but can escalate into a serious disaster risk that threatens the sustainability of the company.
 

Small Business Team

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