Recess Periods and Designing a Working Hour System
ongsoo Jung, a Korean labor attorney at KangNam labor Law Firm
I. Introduction
The purpose of a recess is to restore workers' fatigue and reduce the boredom caused by continual work, thereby enabling them to continue to work feeling refreshed and with a willingness to work. A ‘recess period’ is the period of time during which a worker is free to rest without being directed or supervised by an employer.
The Labor Standards Act states “Working hours per week shall not exceed forty hours excluding recess hours. Working hours per day shall not exceed eight hours excluding recess hours. In calculating working hours, waiting hours the worker spends while under the employer’s direction and supervision for work shall be regarded as working hours.” (Article 50 of the LSA). The recess period in the Labor Standards Act is excluded from working time, but time waiting for work is determined to be working time, not a recess period. Although the relationship between working time and recess period is clear, there is a vague distinction between ‘waiting time’ and ‘recess period’. In designating working hours, it is possible to secure optimal working hours even within statutory working hours if the proper recess period is used in consideration of the characteristics of the work. In order to design a suitable working time system, the concept of recess periods, and the criteria for distinguishing between ‘waiting time’ and ‘recess period’ is explained, along with examples of some working time systems using relevant recess periods.
II. The Concept of a Recess Period and its Practical Use
1. Legal regulations
According to the Labor Standards Act, “An employer shall allow a recess period of 30 minutes or more for every 4 working hours and more than 1 hour for every 8 working hours during working hours” (Article 54 of the LSA). “Any person who violates the provision of ‘recess period’ shall be punished by imprisonment of up to two years or by a fine not exceeding twenty million won” (Article 110). “Working hours per week shall not exceed 40 hours excluding recess hours, and working hours per day shall not exceed 8 hours excluding recess hours, and waiting hours that the worker spends while under the employer’s direction and supervision for work shall be regarded as working hours” (Article 50).
2. Free use of recess periods
‘Recess period’ means time which a worker is free to use away from the supervision and command of an employer during working hours. Here, the term ’working hours’ refers to the time when a worker provides work in a labor contract under the direction and supervision of an employer. Even if a worker is not actively working (i.e. waiting time, rest time, sleeping time, etc.), if it is a period of time when that free use is not guaranteed to the worker and is actually time under the control and supervision of an employer, this time is included in working hours.
A recess period is part of the working hours from the start to the end of work, so even during a recess period it is unavoidable that a worker may still be subject to a certain level of restriction, such as the command and supervision of an employer to continue to carry out work. In other words, workers can be given free breaks, but at the same time there may be some restricted recess periods, depending on the nature of the work, when it is necessary to maintain continuity of work and efficiently respond to emergency situations. In this case, if workers are free to use the recess period beyond the command and supervision of the employer, even though they are restricted within the workplace or are not allowed to leave the workplace during the break without permission, these limitations, which may be required in order to meet objective criteria recognized in advance, can be accepted as a reasonable limitation as to where and how to use breaks.
3. Scope and use of recess periods
(1) Principle: Article 54 (1) of the Labor Standards Act stipulates that an employer shall provide a recess period of 30 minutes or more in the case of 4 hours of work, or 1 hour or more in the case of 8 hours of work. This is the minimum standard for recess periods that employers must provide for workers who work continuously for specific periods of time. Even if the recess period is provided and given in divided portions distinctive from working hours, as long as such recess periods are reasonable in view of the nature of the work and the working conditions, this cannot be regarded as a violation of the recess regulation.
(2) Working hours of less than 8 hours: Employers shall provide 30 minutes or more of recess period during the working hours to workers whose working time is more than 4 hours and less than 8 hours. However, since this is the lowest standard, it is not a problem to provide more recess time.
(3) Divided recess periods: The Labor Standards Act does not provide any provision for dividing a recess period into 10 minutes for every hour or 20 minutes for every two hours. A breakdown of subdivided hours may not be admitted, as the purpose of a recess period is to provide rehabilitation from fatigue, promotion of work efficiency, prevention of work accidents, eating time and to meet other socio-cultural requirements.
(4) Working hours exceeding 8 hours: In case of overtime work for more than 8 hours per day, a recess period of 30 minutes or more for 4 hours of overtime work and 1 hour or more for 8 hours or more shall be provided pursuant to Article 54 of the Labor Standards Act.
III. Classification of Waiting Time and Recess Period
1 Judgment standard
(1) Working time and recess period
‘Working time’ refers to the time during which an employee provides work under the direction and supervision of an employer. Any waiting time is under the direction and supervision of the employer, and so shall be regarded as working time (Article 53 (3) of the LSA). On the other hand, ‘recess period’ refers to the time which a worker is free to use away from the command and supervision of an employer during working hours.
(2) Waiting time and recess period
Both ‘waiting time’ and ‘recess period’ are common, in terms of occurring during working hours. The difference is that ‘waiting time’ is the time preparatory to engaging in work as soon as the employer instructs and is therefore under the direction and supervision of the employer. ‘Recess period’ on the other hand, is time which workers are free to use separate from the direction and supervision of an employer. Therefore, the distinction between the two is determined according to whether the worker can freely use the time available. If the worker can clearly distinguish the recess period before starting work, and can freely use it with no direction or supervision of an employer, it must be regarded as a recess period, but if it is not known when there will be a work-related instruction from the employer while the worker is waiting, the time cannot be considered a recess period, but as working time.
2. Related cases
(1) Drivers for transportation companies
When workers of transportation companies, such as tour bus drivers, go to work and are not sure at what time they will be placed dispatched for work, and freely wait at the workplace, but when workers wait without knowing when they will be requested to work for the employer, such waiting time is not considered a recess period. However if, due to the nature of the work, it is not possible to uniformly set a certain recess period in advance, if the dispatch time of the day is clearly defined so that the distinction between the dispatch time (vehicle operation time) and waiting time is clear before work or on the day of work, and if the worker knows the waiting time in advance and if such waiting time is available freely beyond the direction and supervision of the employer, this is a recess period.
(2) Apartment guards
In this instance, apartment guards worked 24 hours from 07:00 to 07:00 the next day, and then rested. Among the 24 hours of work, the recess period consisted of 6 hours, and was divided into 1 hour for lunch, 1 hour for dinner, and 4 hours for night break (from 24:00 to 04:00). They were required to respond immediately if something urgent happened, even if it occurred during the night recess period. Although guards were wearing their work uniforms and took a nap during the night recess period, they were ready to react immediately in case of an emergency, and therefore such night rest periods should be regarded as working time.
(3) Goshiwon (long-stay inn) receptionists
Goshiwon receptionists do not have predetermined times set aside for recess periods. As visitors or new tenants do not have a fixed arrival time, the receptionists must remain in place without leaving the Goshiwon house. The owner provides the necessary work instructions without special time constraints, and receptionists must also fulfill unscheduled instructions. Although the receptionists did not have any special work to do, and although they took long breaks or studied during many of the waiting hours, such time is considered to be a waiting time for work, not a recess period completely free from direction and supervision.
(4) Postal vehicle drivers
Drivers working in the postal logistic service have often taken breaks (such as eating or sleeping) at work, while working every other day. However, these breaks were taken during gaps in time while waiting to provide labor between the time of going to work and leaving work at a specific time. In other words, such periods were not provided freely away from the employer’s direction and supervision.
(5) Nursing assistants
The labor contract of nursing assistants who worked a three-shift schedule specified a four-hour rest period during the night shift and the availability of a night-time sleeping room. However, in reality they often could not sleep there due to emergency calls from patients at the nursing hospital where they worked. Such periods should be regarded as waiting hours for work.
IV. Recess Periods and Related Working Hour Cases
1. Recess periods in hotel restaurants
In many restaurants, there are times when it is not busy, such as between breakfast and lunch and between lunch and dinner, so the business closes for two to three hours per day. Workers who are preparing for their work are recognized as working, but other workers are allowed to use this time freely to go out or rest. In response to this, the Ministry of Employment and Labor presented this opinion: Article 54 of the Labor Standards Act only specifies the minimum standard of a recess period, but there is no regulation on the longest time. Therefore long recess periods (2-3 hours) exceeding statutory recess periods are acceptable, but unlimited long intervals during working hours are against the original intent of the recess system. In order to view such long breaks as a recess period under the Labor Standards Act, there must be objective reasons that can be generally recognized as necessary and socially valid in view of the nature of the work or the working conditions of the workplace. Such recess period should be decided in advance by collective agreement, employment rules, labor contract, etc., so that employers cannot change or extend it arbitrarily, and workers should be guaranteed to be able to use it free from the provision of labor.
2. Long recess periods at hotels
A break time system refers to a working hour system that allows workers to rest for a time period longer than the stipulated time of the law by using time when the work load is significantly less or non-existent (In case of hotel business, 14:00 ~ 17:00 break time is usually used). It is difficult to say if it is illegal for an employer to enforce a break time system for workers because the Labor Standards Act specifies only the minimum standard for a recess period with no maximum regulated limits.
3. Middle East construction workers’ long recess periods
In the Middle East, it is objectively recognized that workers cannot work outside on construction sites where the temperature rises rapidly during the day. Instead, they work from 06:00 to 10:00, taking recess time from 10:00 to 16:00, and then working from 16:00 to 20:00, according to collective agreements, employment rules or labor contracts. During the recess period, workers are completely free from work-related activities. In such cases, even though the recess period is long, such long intervals between working hours can be recognized as recess periods.
V. Conclusion
Whether a break or waiting time set out in a labor contract falls within ‘working hours’ or ‘recess period’ cannot be judged exclusively according to a particular kind of business or type of work. It should be judged based upon considerations such as (i) the terms of the employment contract, the rules of employment, or collective agreement applicable to the workplace, (ii) the work provided by the employee and the specific type of work at the workplace, (iii) the employer's control and supervision of employees during recess hours, (iv) whether there is a freely-available resting place, and (v) other circumstances such as whether or not the worker's actual rest can be interrupted or whether there are situations which allow the employer to direct and supervise workers during recess hours.
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