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If an employee offers to work more this week, or stays late on their own, is it acceptable to go a little over 52 hours a week? In short, no. The overtime limit cannot be exceeded even with the employee's consent.

What causes more confusion in practice is how the hours are counted. Typical questions are whether overtime pay is owed when someone works 10 hours a day for four days, which totals 40 hours a week, and whether working 13 hours a day for four days violates the 52-hour cap. This post explains, with a Supreme Court decision and examples, how the standard for overtime pay differs from the standard for the 52-hour cap.

[Contents]

1. The 52-Hour Cap Stays Even If the Employee Wants More

2. Overtime Pay Starts From 'Eight Hours a Day'

3. The 52-Hour Cap Counts Only Hours Over 40 a Week

4. Two Calculations, Shown With Examples

5. What to Check at Your Workplace – Under Five Employees, Records, Flexible Hours

The 52-Hour Cap Stays Even If the Employee Wants More

Article 50 of the Labor Standards Act (근로기준법) sets working hours at 40 hours a week and 8 hours a day, excluding breaks, and Article 53(1) provides that working hours may be extended by up to 12 hours a week if the parties agree. Forty hours plus 12 hours of overtime makes the so-called '52-hour workweek.'

The employee's agreement here is only a condition for requiring overtime within the 12 hours; it is not a basis for going beyond 12 hours. The Supreme Court has likewise held that Article 53(1) is a provision intended to prohibit overtime itself, so that overtime exceeding 12 hours a week may not, in principle, be required even if the parties agree (Supreme Court Decision 2020Do15393, December 7, 2023). A violation can be punished by imprisonment of up to two years or a fine of up to 20 million won (Article 110, Item 1).

So if an employee says 'I want to work 60 hours this week' and the employer lets them, the responsibility remains with the employer. The only ways to exceed the cap are the exceptions set by law, such as special extended work approved by the Minister of Employment and Labor with the employee's consent when special circumstances exist (Article 53(4)). The employer's liability for violations is also covered in detail in Exceeding Korea's 52-Hour Workweek Limit.

Overtime Pay Starts From 'Eight Hours a Day'

Overtime pay must be paid both for work beyond 8 hours a day and for work beyond 40 hours a week. The employer must pay at least 50 percent of the ordinary wage on top for overtime work (Article 56(1)), and the Supreme Court has explained that the law requires premium pay for overtime exceeding 8 hours a day or 40 hours a week (Decision 2020Do15393 above).

So if someone works 10 hours a day from Monday to Thursday, the weekly total is 40 hours, but the 2 hours beyond 8 each day, 8 hours in total, are overtime. If the employer treated this as 'no overtime pay because it did not exceed 40 hours a week,' it may have failed to pay 8 hours of overtime pay.

Working hours here are counted excluding breaks. Conversely, waiting time and the like spent under the employer's direction and supervision for the work are treated as working hours (Article 50(3)). For what counts as working time, see Waiting, Training and Preparation Time: What Counts as Working Hours (Korean).

The 52-Hour Cap Counts Only Hours Over 40 a Week

Then, is it a violation of the 52-hour cap if the hours beyond 8 each day add up to more than 12? The Supreme Court said no. Whether weekly overtime exceeded 12 hours must be judged by the hours worked beyond 40 in the week, without regard to whether the hours exceeded 8 on any given day (Decision 2020Do15393 above).

The Supreme Court's reasons were as follows. Article 53(1) sets the overtime limit on a weekly basis only and does not use a daily basis, and no provision limits the weekly sum of hours beyond 8 a day. In addition, the premium pay provision aims to discourage overtime through a financial burden and to compensate employees, not to prohibit overtime itself, so the standard for overtime that requires premium pay and the standard for overtime beyond the 12-hour weekly cap need not be the same.

In this case, the CEO of a company with about 500 regular employees was charged with having an employee work more than 12 hours of overtime a week from 2014 to 2016. The lower court added up the hours beyond 8 on each working day and treated weeks exceeding 12 hours as violations, but the Supreme Court held that this method of calculation was wrong and reversed the judgment. The case applied the former Labor Standards Act, but the wording of the current Articles 50 and 53(1) is the same.

So if someone works 13 hours a day for four days, the hours beyond 8 a day total 20, but the weekly total is 52 hours and the hours beyond 40 come to 12, so the cap is not violated. Overtime pay, however, must be paid for 20 hours on the daily 8-hour basis. The same decision also held that when an employee works 4 hours of overtime beyond 8 hours a day, a break of at least 30 minutes must be given during the overtime, so a 13-hour workday also requires attention to breaks.

Two Calculations, Shown With Examples

Even within the same week, overtime pay and the cap must be calculated separately. Typical cases, based on actual working hours excluding breaks, are summarized below.

• 10 hours a day × 4 days (40 hours a week): No hours exceed 40 a week, so the cap is not violated. The hours beyond 8 a day total 8, so overtime pay is owed for 8 hours.

• 13 hours a day × 4 days (52 hours a week): The hours beyond 40 are 12, so the cap is not violated. The hours beyond 8 a day total 20, so overtime pay is owed for 20 hours.

• 11 hours a day × 5 days (55 hours a week): The hours beyond 40 are 15, exceeding the 12-hour cap. Overtime pay for 15 hours must also be paid separately.

• 12 hours a day × 5 days (60 hours a week): The hours beyond 40 are 20, which violates the cap. This is so even if the employee wanted to work those hours.

Keeping within the cap does not make the overtime pay issue go away, and paying all overtime pay does not cure a violation of the cap. The former is a question of whether wages were properly paid, while the latter is a working-hours violation that can be criminally punished; the two are separate.

What to Check at Your Workplace – Under Five Employees, Records, Flexible Hours

First, check the number of regular employees. For workplaces that regularly employ four or fewer workers, only the provisions of the Labor Standards Act designated by Presidential Decree apply (Article 11(2)), and Appendix 1 of the Enforcement Decree lists only breaks (Article 54), weekly paid holidays (Article 55(1)) and exclusions (Article 63) from the working-hours chapter. As a result, the provisions on working hours (Article 50), the overtime cap (Article 53) and overtime premium pay (Article 56) do not apply to workplaces with fewer than five employees.

Next, keep records of actual working hours. Both whether the cap was violated and how much overtime pay is owed start from how many hours were worked each day. In the case above, the lower court also treated as actual working hours the time between the start time under the rules of employment and employment contract and the end time recorded in the work log, minus break time. Keeping attendance records, work logs and records of breaks given provides a basis for judgment if a dispute arises.

Finally, if workloads vary greatly from week to week, it is better to consider systems such as flexible working hours (Articles 51 and 51-2), selective working hours (Article 52) and discretionary working hours (Article 58(3)) rather than relying on overtime. Each system, however, has strict requirements such as a basis in the rules of employment or a written agreement with the employee representative, so they should be checked carefully before introduction. The requirements of each system are summarized in the column above.

In short, the 52-hour cap cannot be exceeded even with the employee's consent. Overtime pay is owed for hours beyond 8 a day or 40 a week, while the 52-hour cap is judged separately by whether the hours beyond 40 in the week's total stay within 12.

Cheongchul Law Firm directly handles labor and HR matters, including designing working-hour systems, calculating overtime pay, and responding to labor inspections and complaints. If you are concerned about how working hours or overtime pay are managed, please contact us through consultation booking.

This post is written for the purpose of providing legal information and does not constitute legal advice on any specific matter. Since conclusions may differ depending on the facts of each case, please be sure to consult a professional.