Labor Standards Act art. 76-3(2)

Where an employer receives a report or becomes aware that harassment has occurred, it “shall without delay conduct an objective investigation of the parties and others to establish the facts”. The investigation is not the company's option; it is a duty.

• Protective measures may be taken for the affected employee during the investigation, but no measure may be taken against that employee's wishes (art. 76-3(3)). There are cases where moving the complainant in the name of protection was later contested as a detrimental measure.
• Those who take part in the investigation are bound by confidentiality (para. 7). The fact of the investigation becoming known within the company is itself secondary harm.
• Unfavourable treatment of the reporter and the affected employee is prohibited (para. 6).
• The affected employee must be heard before the alleged perpetrator is disciplined (para. 5, second sentence).

Equal Employment Opportunity Act art. 14(2)

Where the employer receives a report or becomes aware that sexual harassment has occurred, it must without delay investigate to establish the facts. Unlike the harassment provision, the second sentence of the same paragraph separately requires that “the affected employee and others shall not be caused sexual humiliation in the course of the investigation”.

• The manner and order of questioning are themselves legal requirements. If establishing the facts creates secondary harm, the investigation itself becomes the problem.
• The prohibition on unfavourable treatment is set out in seven specific categories (para. 6), extending to discrimination in performance appraisal, restriction of training opportunities, and tolerating ostracism.
• Where the investigation confirms that sexual harassment occurred, measures such as a change of workplace or reassignment must be taken at the affected employee's request (para. 4).
• The affected employee must be heard before disciplinary or other measures are taken (para. 5, second sentence).

Rules of employment / code of ethics; Labor Standards Act art. 23

This is the investigation conducted where a breach of the rules of employment, the code of ethics, or the employee code of conduct is alleged. The statute does not make an investigation mandatory. However, to discipline on the ground of a breach the facts must have been established, and the “justifiable cause” for discipline required by art. 23 of the Labor Standards Act ultimately rests on facts established and procedure observed.

• If the opportunity to be heard provided for in the rules of employment or the collective agreement is skipped, the discipline is contested as procedurally defective even where the cause is accepted.
• A recurring problem at foreign-invested companies is a divergence between the headquarters code of conduct and the Korean rules of employment.
• Which standard governs, and whether a breach of a headquarters rule constitutes cause for discipline under Korean law, must be settled first if the investigation is not to be destabilised.

Scope — the purpose is to establish the facts that form the basis for disciplinary or personnel measures.

Unfair Competition Prevention and Trade Secret Protection Act art. 2

Article 2(2) of that Act defines a “trade secret” as information that is “not publicly known, has independent economic value, and has been managed as a secret”. Article 2(3)(d) treats as an infringement the use or disclosure of a trade secret, for the purpose of obtaining an improper benefit or causing loss to the holder, by a person under a duty to keep it secret arising from a contractual or similar relationship.

• The first question in the investigation is not “was it leaked” but “was it being managed as a secret”.
• If access was not controlled, if there was no confidentiality marking, or if there was no confidentiality undertaking, the information is unlikely to be recognised as a trade secret. Disciplining before establishing this gets overturned.
• Points examined — how the information was actually managed as a secret, access rights and routes of removal, the terms and scope of the employee's confidentiality undertaking, and the circumstances of actual use or disclosure.

Scope — the purpose is to establish the facts that form the basis for disciplinary or personnel measures. Conducting legal proceedings such as a criminal complaint or a civil damages claim is a separate matter of legal advice; where required, we organise the investigation record in a form that can be used for that assessment.

Rules of employment / employment contract; Supreme Court 2015Da221903

No statute generally prohibits an employee from holding concurrent employment. The basis is the non-competition or moonlighting clause placed in the rules of employment or the employment contract, and the validity of that covenant is itself contested.

• In its judgment of 27 October 2016 in case 2015Da221903, the Supreme Court held that because a non-competition covenant restricts the employee's freedom to choose an occupation and right to work, it must be construed restrictively as valid only to the extent that it reasonably limits the right to work, weighing the employer's interest worthy of protection, the period and territory of the restriction, whether consideration was provided to the employee, the public interest and other circumstances.
• The same judgment held that the burden of asserting and proving the circumstances capable of establishing validity rests on the employer, and that where the employer failed to prove them the covenant could not be given effect.
• The focus of the investigation is therefore not “did the employee take other work”. What decides the matter is whether that work impaired the provision of labour or harmed the company's interests.
• Points examined — the actual content and timing of the outside work, whether working hours or company resources were used, whether a competitive relationship exists, the specific impairment shown in the provision of labour, and material supporting the validity of the covenant itself.

Scope — the purpose is to establish the facts that form the basis for disciplinary or personnel measures. Conducting legal proceedings such as a damages claim for breach of contract is a separate matter.