[N Job Seekers Are Coming] 'Million YouTuber' Kim Daeri Is Not Guilty

The Dilemma of Moonlighting Prohibition in Employment Rules

Comprehensive Ban Likely to Be Legally Invalid
Guidelines Such as Prior Notice Must Be Established

[Sejong=Asia Economy Reporter Joo Sang-don] Shuka (Jeon Seok-jae), who has recently gained popularity through various broadcasts, was once a salaried YouTuber. He runs the economic YouTube channel ‘Shuka World,’ which has 1.46 million subscribers. As a fund manager, when he became known as a YouTuber, the company, displeased with Shuka’s ‘two jobs,’ reportedly forced him to resign, claiming that YouTube activities constituted grounds for severe disciplinary action. Ultimately, Shuka voluntarily resigned in 2019. From a legal perspective, it is not entirely impossible for employees to have side jobs, but the reality is complicated. Additionally, companies’ attitudes that fundamentally block ‘N-jobbers’ are also considered a challenge.

Recently, as interest in side jobs has surged, inquiries from employees to labor unions have also increased. Kang Sung-hoe, a labor attorney affiliated with the Korean Confederation of Trade Unions’ legal office, said in a phone interview with Asia Economy on the 19th, "It is difficult to quantify the number of labor consultations related to side job bans, but many cases involve legal advice after disciplinary actions or disciplinary committees are convened."

Conflicts between employers and employees over side jobs generally fall into two categories. One is when side jobs are prohibited outright through company regulations, employee rules, employment regulations, or labor contracts, or allowed only with the approval of the head of the institution or department. The other is when the employer disciplines the employee citing reasons such as neglect of duty. Namgung Jun, a senior researcher at the Korea Labor Institute, said, "Although the specific wording varies, many regulations state that ‘employees may not engage in profit-making activities outside company work.’ In principle, absolute employer-side bans on side jobs are likely to be invalid."

Legally, comprehensively and fundamentally banning employees from having side jobs has a high risk of being unconstitutional. Jeong Jong-cheol, a lawyer at Kim & Chang law firm, pointed out, "Banning side jobs infringes on the constitutional freedom to choose one’s occupation," and "It should be considered legally invalid." This is because Article 15 of the Constitution states, ‘All citizens shall have the freedom to choose their occupation,’ and Article 17 states, ‘All citizens shall not be infringed upon in their privacy and freedom.’

Based on this, there are precedents that disciplinary actions solely based on employees having side jobs are unfair. On July 24, 2001, the Seoul Administrative Court ruled, "An employee’s engagement in another business falls within the scope of personal ability and privacy. Completely and comprehensively banning side jobs that do not interfere with corporate order or labor provision is unfair." Furthermore, in a ruling on February 15, 2001, it was judged that "an employee can only be dismissed without cause if the side job violates the duty of loyalty or faithfulness to the employer to the extent that the employment relationship cannot be maintained according to social norms." Disciplinary actions based on side jobs are thus limited to cases where the employer suffers actual damage such as neglect of duty.

Senior researcher Nam said, "Exceptionally, side job bans may be valid," but added, "Even then, the employer must prove that the employee’s side job interfered with the proper performance of their main duties or damaged the company’s reputation."

The Ministry of Employment and Labor also judged in a 2017 administrative interpretation that disciplinary actions solely for side jobs are unfair. It stated, "As long as side jobs fall within the scope of private life outside working hours and do not interfere with corporate order or labor provision, completely and comprehensively banning side jobs is unfair."

Attorney Kang suggested that the government needs to provide specific guidelines on side jobs. He said, "In Japan, the standard employment rules were revised in 2018 to allow and encourage side jobs and multiple jobs," and added, "Our government also needs to present specific guidelines on side jobs, even if not to the extent of encouragement, similar to ‘workplace harassment’ and the ‘Serious Accidents Punishment Act.’"