Ordinary Wage Litigation Lawyer | Getting Overtime and Allowances Recalculated Correctly

Ordinary Wage Litigation | What Actually Counts as Ordinary Wage

The Supreme Court has set out a three-part test — fixedness, uniformity, and periodicity — to decide whether a payment belongs in ordinary wage, regardless of what your employer calls it.

The Fixedness Test

A payment is considered part of ordinary wage if it is paid unconditionally, in a predetermined amount, simply for having worked — regardless of performance, attendance, or year-end evaluation results. Bonuses that are paid to every employee at fixed intervals regardless of individual performance are generally treated as ordinary wage under Supreme Court precedent (대법원 2013.12.18. 선고 2012다89399 전원합의체 판결).

Names Do Not Matter, Substance Does

Employers sometimes label a payment a 'bonus,' 'incentive,' or 'welfare benefit' specifically to keep it out of the ordinary wage calculation. Courts look past the label and examine whether the payment meets the fixedness, uniformity, and periodicity criteria in practice — so a 'management performance bonus' paid to everyone every quarter can still count as ordinary wage.

Common Items in Dispute

Frequently litigated items include fixed monthly bonuses paid in installments, meal allowances, transportation allowances, family allowances, and certain welfare-point style benefits. Whether each item qualifies depends heavily on your specific collective bargaining agreement or company wage regulations, so the actual wording of your pay rules matters as much as the payment's name.

Ordinary Wage Litigation | How the Back-Pay Amount Is Calculated

Once an item is confirmed as part of ordinary wage, the hourly ordinary wage rate is recalculated, and every overtime, night, holiday, and annual leave allowance paid during the claim period is recomputed against that corrected rate.

Recalculating the Hourly Rate

Under the Labor Standards Act enforcement decree, the hourly ordinary wage is derived by adding up all qualifying fixed payments and dividing by the statutory monthly working hours (근로기준법 시행령 제6조). Adding a wrongly excluded bonus into this base can meaningfully raise the hourly rate used for every overtime calculation.

Overtime, Night, and Holiday Premiums

Extended, night, and holiday work must be paid at 50% above the ordinary wage rate for the hours worked (근로기준법 제56조). Because these premiums are multiples of the ordinary wage, even a modest correction to the base rate compounds into a larger back-pay figure across months or years of overtime records.

Retirement Pay and Annual Leave Allowance

A corrected ordinary wage can also affect statutory annual leave allowance and, in some structures, average wage used for retirement pay calculations, since these figures are built on the same underlying wage base. Reviewing payslips and time records across the full employment period is usually necessary to quantify the total claim accurately.

Ordinary Wage Litigation | The 'Good Faith' Defense Employers Raise

Employers frequently argue that paying the corrected amount now would threaten the company's survival, invoking the general good-faith principle to try to block retroactive claims — but the Supreme Court has limited when this defense actually works.

When the Defense Can Succeed

The Supreme Court has allowed employers to resist retroactive claims under the principle of good faith (민법 제2조) only in narrow situations — typically where a collective agreement had explicitly excluded a bonus from ordinary wage, and paying the full retroactive claim would cause serious financial hardship threatening the company's existence (대법원 2013.12.18. 선고 2012다89399 전원합의체 판결).

Why It Usually Fails for Individual Claims

Where there was no such explicit collective agreement exclusion, or where the employer's financial condition is not genuinely precarious, courts have generally rejected the good-faith defense and ordered full back payment. Employers often raise this argument as a negotiating tactic even when the facts do not support it, so it should not automatically discourage you from pursuing a claim.

Ordinary Wage Litigation | From Payslip Review to Judgment

Ordinary Wage Litigation | How Fees Are Typically Structured

※ Costs vary depending on case complexity and specific circumstances; exact fees will be provided during consultation. No specific outcome is guaranteed.

Ordinary Wage Litigation | Self-Check Before You File

Frequently Asked Questions

Official References

• Korea Law Information Center — https://www.law.go.kr
• Easy-to-Find Everyday Legal Information — https://easylaw.go.kr
• Korea Legal Aid Corporation — https://www.klac.or.kr
• Ministry of Employment and Labor — https://www.moel.go.kr