Annual Leave at Workplaces with Fewer Than 5 Employees in Korea: What Foreign Workers Need to Know

Annual Leave at Workplaces with Fewer Than 5 Employees: Is It Legally Guaranteed?

If you work at a small workplace with fewer than 5 employees — such as a convenience store, a small café, or a neighborhood restaurant — you may have wondered: "Can I take annual leave?" The short answer is: it is not guaranteed by law, but it depends on your contract.

Article 60 of the Labor Standards Act Does Not Apply to Workplaces with Fewer Than 5 Employees

Article 60 of the Labor Standards Act (근로기준법 제60조) governs annual paid leave (연차 유급휴가). It requires that a worker who has attended work for 80% or more of the year be given 15 days of paid leave, and that a worker employed for less than 1 year be given 1 day of leave per month, up to a maximum of 11 days.

However, Article 11 of the Labor Standards Act (제11조) states: "This Act applies to businesses or workplaces that regularly employ 5 or more workers." Because the annual leave provision (Article 60) falls within this scope of application, there is no legal obligation to provide annual leave at workplaces that regularly employ fewer than 5 workers.

In other words, an employer at a workplace with fewer than 5 employees will not be penalized under the Labor Standards Act for not granting annual leave. This is why filing a complaint with the Ministry of Employment and Labor (고용노동부) in such cases will not result in a finding of a legal violation.

Note for foreign workers: The statutory minimum described above is the legal floor. If your employment contract or workplace rules offer more favorable terms, those contractual terms take precedence.

Does That Mean You Get Nothing? — Check Your Contract

Even where the law does not guarantee annual leave, if annual leave is explicitly stated in the employment rules (취업규칙) or the employment contract (근로계약서), the employer is legally bound to honor it. This is because the terms of a contract are enforceable under civil law.

For example, if your employment contract states "15 days of annual leave granted," and the employer fails to fulfill this, you may hold the employer liable for breach of contract (채무불이행) under civil law. It is therefore important to check whether your contract includes any annual leave provisions before you start work — and if it does not, it is advisable to negotiate and have the terms written in.

Rights That Do Apply to Workplaces with Fewer Than 5 Employees

Annual leave may not apply, but the following rights remain fully in effect at workplaces with fewer than 5 employees:

These rights apply to all workers regardless of the size of the workplace. If any of them are being violated, you can report the matter to the Ministry of Employment and Labor.

Annual Leave Applies Once the Workplace Reaches 5 or More Employees

From the moment the number of regularly employed workers reaches 5 or more, the annual leave provisions of the Labor Standards Act begin to apply. Because the "number of regularly employed workers" is calculated as an average over a certain period — not based on temporary fluctuations — an accurate assessment is necessary whenever the size of the workplace changes.

Calculate Your Annual Leave Days

If you work at a workplace with 5 or more employees, or at a workplace with fewer than 5 employees where annual leave is specified in your contract, you can use the annual leave calculator at workbear.kr to check your remaining leave days and leave allowance. Simply enter your start date and working conditions. If you want to know whether your contract terms are lawful, you can also use the AI contract review feature.

This article is for informational purposes only and does not constitute legal advice. For specific cases, consult a certified labor attorney (노무사) or lawyer.

Frequently Asked Questions

Can an employer at a workplace with fewer than 5 employees face penalties for not providing annual leave?

Article 60 of the Labor Standards Act 근로기준법 제60조 , which governs annual paid leave 연차 유급휴가 , applies only to workplaces that regularly employ 5 or more workers. Therefore, an employer at a workplace with fewer than 5 employees will not be penalized under the Labor Standards Act for not granting annual leave. However, if annual leave was promised in the employment rules or the employment contract, the employer may be held liable for breach of contract under civil law.

Can I receive a weekly holiday allowance even at a workplace with fewer than 5 employees?

Yes. The weekly holiday allowance 주휴수당 is provided under Article 55 of the Labor Standards Act 근로기준법 제55조 , and this provision applies to all workplaces regardless of size. If you work 15 or more hours per week, you are guaranteed one paid weekly holiday per week.

Am I entitled to severance pay at a workplace with fewer than 5 employees?

Yes. The Act on the Guarantee of Workers' Retirement Benefits 근로자퇴직급여 보장법 applies to all workplaces that regularly employ 1 or more workers, so workplaces with fewer than 5 employees are also obligated to pay severance pay 퇴직금 . If you have worked continuously for 1 year or more and then leave, you are entitled to severance pay, which must be paid within 14 days of your departure.

If a workplace grows from fewer than 5 employees to 5 or more, does annual leave apply immediately?

Article 60 of the Labor Standards Act begins to apply from the point at which the number of regularly employed workers reaches 5 or more. However, the 'number of regularly employed workers' is determined based on an average over a certain period rather than temporary fluctuations, so it is important to confirm the calculation method in accordance with the Ministry of Employment and Labor's administrative interpretation.