미국 연방노동법의 공동고용 원리에 관한 연구

김미영(Kim Miyoung) 한국노동법학회 2010 노동법학 Vol.0 No.35

Employment Contract means traditionally that an employer should hire and employ a employee. The employee should directly provide his service for the employer within the contract relations. The employment relations could be only established between the contracting parties conceptually, but such a concept of the relations could not cover, so called, an indirect employment involving the third who is not the employment contracting parties. Today, the indirect employment, a temporary agency work, contract work and employment leasing, have been spread out in many workplace. There is some controversy about whether the employment relations may be bipartite relations or tripartite relations on the traditional concept of a employment contract. Nevertheless, there are general consents to the rules of employment and labor laws regulating the relations and determining the employer's liability. The Doctrines of Joint Employment is the rules for the indirect employment relations in U.S labor laws. Under the doctrines the supplier employer and user employer should have, individually or jointly, the employer's liability provided by the labor laws. The doctrines have been developed over a long period of time with some case laws, and then it is provided on the federal labor laws.

고용안전망 및 고용서비스 관련 법・제도 개선방안

이호근 한국사회정책학회 2023 한국사회정책 Vol.30 No.3

고용안전망 중 고용보험제도는 「고용보험법」상 의무적용 대상자인 종속적 임금근로자외 임의적용 대상인 자영업자가 있으나 광범위한 사각지대 문제를 안고 있다. 코로나19 고용위기를 경과하며 고용보험제도는 의무가입 대상으로 ‘예술인・노무제공자’와 ‘플랫폼 노동자’ 등 종속적 자영업자에 단계적으로 적용확대가 추진되어왔다. 정규직보다도 이들 사각지대에 있는 종속적 자영업자 등이 더 큰 고용위험에 처한 경우가 많았고, 그 결과 「고용보험법」과 「고용보험 및 산업재해보상보험료 징수에 관한 법률」(이하 보험료 징수법), 「산업재해보상보험법」 등이 개정되었다. 새롭게 도입된 ‘노무제공자’는 그간 전속성・비대체성 규정 등이 변화하는 노동현실을 반영하지 못한다는 이유에서 비판되어 오던 ‘특수형태근로 종사자’ 규정을 확대・적용한 것으로 진일보한 것으로 평가된다. 그런데, 노무제공자를 ‘시행령’상 업종별로 정하고 있는 부분은 헌법상 평등의 원칙과 포괄적 위임입법금지의 원칙에 위배되고 있어 그 개선이 필요하다. 노무제공자개념은 법적 ‘정의규정’외에 현재 관련 대상자 판별 ‘절차규정’이 부재하여 쟁점이다. 현행같이 시행령에 포괄적으로 위임되어 업종별로 적용대상을 선정하는 방식은 그 대상 확정의 ‘임의성’과 비적용대상 업종 노무제공자를 차별 취급할 합리적인 이유가 부재하여, 평등의 원칙에 위배되는 위헌적 요소가 있다. 한편, 2차 고용안전망인 고용서비스 체제와 관련 정부가 국정과제로 추진하고자 하는 ‘고용서비스 고도화 방안(2023.1.27.)’의 핵심 내용은 첫째, ‘공공고용서비스체제의 현대화’와 ‘효과적인 민관협업체제의 구축과 민간고용서비스의 활성화’ 등 두 가지 사안으로 압축된다. 관련 국회에 계류 중인 「직업안정법 개정(안)」에 나타나고 있는 주요 내용은, 첫째, 기존 공공고용서비스체제의 현금성 지원보다는 공급중심의 고용서비스의 질적 제고를 통하여 고용정책 패러다임을 변화시키고자 한다. 둘째, 고용서비스를 정부주도에서 향후 ‘민관협업을 통한 고용서비스 활성화’와 ‘민간유료직업소개업의 확대방안’이 그 주요 내용이다. 민간유료직업소개업자와 관련 종사자에 대한 교육의무 및 관련 플랫폼 노동자 현황에 대한 보고의무 등 최소한의 의무 규정만을 규율하여 고용서비스를 민간유료직업소개업과 시장의 활성화를 통해 제고시키고자 한다. 그러나 이는 몇 가지 우려를 낳고 있다. 현재 민간유료직업소개업은 그 종사자 수가 평균 1.5인에 불과하며, 5인 미만 비중이 80%에 달하는 등 대부분이 영세한 실정으로 이에 대한 적절한 관리감독 방안없이 고용서비스의 시장화는 향후 온라인 민간고용서비스기관의 등록 절차완화 등 진입절차가 더욱 간소화 되는 등 민간유료서비스업이 급속히 팽창해 나갈 것으로 예상되는 환경에서, 자칫 무분별한 불안전 고용의 증가로 이어질 것이 우려된다. 빅데이터(Big Data)와 인공지능(AI)을 이용한 고용서비스의 활성화는 중요한 추세라 할 수 있다. 민간유료직업소개업은 자산과 종사자 수 등에서 일정한 규모를 갖추도록 하고, 부문별 전문성을 중심으로 하며, 정기적으로 성과 등의 심사를 강화하는 등 관리방안 마련이 필요하다. 고도화방안이 천명하는 고용과 복지의 통합서비스 네트워크 구축방안은 국내외에서 그간의 경험과 시행착오를 고려할 때... Among the employment safety nets, the employment insurance system has been compulsory for dependent wage earners under the Employment Insurance Act, but there are self-employed people who are subject to voluntary coverage. Over the course of the COVID-19 employment crisis, so-called dependent self-employed people such as ‘artists and workers’ and ‘platform workers’ have been gradually promoted as mandatory members of the employment insurance system. These various types of workers often face greater employment risks than regular employees covered by employment insurance, and as a result, establishing appropriate employment protection measures for them has been a major challenge. This has been partially reflected in the law and system, and the Employment Insurance Act, the Act on the Collection of Employment Insurance and Workers’ Compensation Insurance Premium, and the Workers’ Compensation Insurance Act have been amended to partially improve the blind spots. However, the newly introduced definition of ‘worker’ and its targets are applied as a special regulation under the Workers’ Compensation Insurance Act, and it is evaluated as a progressive expansion and application of the ‘special type of worker’ regulation, which has been criticized because the exclusivity and non-substitutability regulations do not reflect the changing labor reality. Nevertheless, the part where the ‘worker’ concept is still applied by industry in the Enforcement Decree of the relevant law is in violation of the constitutional principle of equality and the principle of prohibition of comprehensive delegated legislation, so it needs to be improved. Beyond the practical challenges of imposing and collecting employment and worker’s compensation insurance premiums, the lack of a clear ‘definition’ of the concept and ‘procedural regulations’ for determining relevant persons is an issue. The current method of selecting applicants by industry, which is comprehensively delegated to the Enforcement Decree, has unconstitutional elements, such as the ‘arbitrariness’ of determining applicants and the lack of reasonable reasons to treat worker in covered and non-covered industries differently, which violates the principle of equality. On the other hand, the core content of the “Employment Service Advancement Plan (2023.1.27.),” which the government intends to promote as a national issue in relation to the employment service system, which can be considered a secondary employment safety net, is compressed into two issues: modernization of the public employment service system, establishment of an effective public-private partnership system, and revitalization of private employment services. In this regard, the main contents of the “Job Security Act Amendment (Draft)” pending in the National Assembly are summarized as follows. First, the existing public employment service system aims to change the employment policy paradigm by improving the quality of employment services centered on supply rather than cash support. Second, the government is planning to revitalize employment services through public-private collaboration and expand the private paid employment agency industry. To this end, the government will regulate only the minimum mandatory regulations, such as the obligation to educate private paid employment agencies and related workers and the obligation to report on the status of related platform workers, to enhance employment services through the revitalization of private paid employment agencies and the market. However, this raises some concerns. Currently, the private paid employment agency industry is mostly small, with an average of only 1.5 workers, and the proportion of less than 5 workers is 80%, and it is feared that the marketization of employment services without proper management and supervision measures will lead to an increase in reckless and unsafe employment. In the future, the private paid service...

근로자파견법상 고용간주조항의 재검토

노상헌 한국사회법학회 2014 社會法硏究 Vol.0 No.23

Employment considering article in worker dispatching law has a legislative purpose to prevent business of dispatching from extending and popularizing by compelling employers to observe duty of direct employment. Meanwhile, it is regarded dispatched worker as employed worker when dispatching period is over 2 years, employers should make their option to terminate the dispatching contract or employ the dispatched worker and maintain labor relationship. This situation can also causes employment instability to dispatched worker. Although it is a disputable issue, it should be maintained direction to accomplish duty of direct employment because the direct employment is the aim of labor law. Even though the reason why employment considering article was revised to direct employment article in 2006 is not clear, we can not conclude that the reason is to correct unconstitutionality of employment considering article. As a sanction article against illegal dispatch is enforced, in my opinion, the purpose of the revision is that labor and management should make ‘the content’ of labor relationship clear in accordance with labor contract rather than ‘the effect’ of employment considering. Also, in revision of worker dispatching law in 2012. 2. it imposed a duty of direct employment on employers without reference to employment period when it comes to illegal dispatching case. With this, it can be concluded that a legislative settlement about a duty of direct employment to employers is fulfilled.

僞裝都給과 不法派遣에 있어 雇傭關係 : 대상판결: 서울중앙지방법원 2005. 4.28 선고 2004가합8635 판결(㈜아이캔 사건)

이재용(Jae-Yong LEE) 한국노동법학회 2006 노동법학 Vol.0 No.22

With the enactment of "Temporary Work Law" in 1998, the business dispatching employees was legitimated. Different from the typical form of employment, "direct employment" where "employment" coincides with "use", labor dispatch takes a form of "indirect employment" under which the direct party to the employment contract is separated from user-employer to whom labor is directly provided. Companies using dispatched workers can lower the cost comparing to direct employment, take less responsibilities under labor laws and respond flexibly to the temporary demand of personnel or the needs for professionals. On the contrary, before and since the enactment of "Temporary Work Law", there have been concerns over the possibilities that labor dispatch can be used as a method of avoiding employer"s responsibilities, deteriorate employment conditions and cause insecurities of employment. In this regard, for the purpose of protecting working conditions and pursuing employment securities of dispatched workers, Temporary Work Law has regulated conditions on the permission to labor-dispatching companies, restricted dispatching period, scope of works allowed to perform by dispatched workers, etc., and construed dispatched works used by a user-employer for two years or more as regular workers of the user-employer. All of the above measures were taken to pursue employment securities of dispatched workers. However, even after the enforcement of the Temporary Work Law, illegal dispatches are still existing, and in particular, "Disguised Outsourcing" which is used by user-employers to avoid the application of Temporary Work Law by disguising contract relationship as undertaking, has been a huge social problem. This paper will review and examine whether constructive employment provided for in Section 6.3 of Temporary Work Law can be applied to "Disguised Outsourcing" and illegal dispatches. Currently, judgments made by courts and Labor Relations Commission have been diverged, and decisions made even within an organization have not been consistent. Such divergences and inconsistencies are caused by ambiguous rules adopted for the decisions on "Disguised Outsourcing", such as public releases of the Ministry of Labor, suspicious reliability on such rules, and inconsistent applications of the rules by courts and Labor Relations Commission. To address the above issues, it is necessary to stipulate expressly whether the constructive employment provision applies to "Disguised Outsourcing" and illegal dispatches. Further, as to identifying "Disguised Outsourcing", characteristics unique to undertakings, or undertakings equivalent should be taken into considerations.

고용장려금 사업의 고용효과 분석

최한실,이진형,황태원 국회예산정책처 2022 예산정책연구 Vol.11 No.4

This study used employment panel data from 2015 to 2019 to estimate the effect of employment promotion subsidies on employment. To analyze the effect of employment promotion subsidies on the number of employment, propensity score matching (PSM) and difference-in-difference (DID) analysis were used. Specifically, compared to non-beneficiaries, it was analyzed whether the number of employment of the beneficiaries increased or decreased during or after receiving subsidies compared to before receiving the subsidies. In most employment promotion subsidies, the number of employment increased. However, the employment maintenance subsidy program showed a decrease in the number of employment both during and after receiving subsidies. In case of tomorrow mutual aid program for young employees, the number of employment was found to decrease after receiving subsidies. In addition, it was examined whether the objectives of each program were properly achieved by classifying them by project purpose, and it was found that all projects except for the employment maintenance subsidy and tomorrow mutual aid program for young employees were found to be achieving the objectives. Although it is not possible to discuss the overall effect of subsidies with the employment number alone, it is necessary to discuss policy improvement when the program did not achieve the purpose.

결혼이주여성의 취업의지에 관한 영향요인 분석

류진아(Jin A Ryu) 한국농촌지도학회 2016 농촌지도와 개발 Vol.23 No.1

The purpose of this study is to examine the female marriage immigrants’ social unification through their employment.The subjects of this study were 116 female marriage immigrants who lived in Kyungi-do. This study analyzed employmentdesire, barrier and volition differences of female marriage immigrants between their socio-demographic factors and effectsof their employment desire and barrier to employment volition. Results of this study; First, desire of maintenance oflivehood and self esteem to employment incresed with age. Second, there were differences in desire of maintenance oflivehood and self esteem to employment between their countries of origins. Third, employment volition and self esteem to employment increased with level of education. Fourth, there were differences in employment volition and self esteemto employment between the length of residence in Korea. Fifth, employment desire and self esteem to employment in-creased with ability to Korean, but internal barrier of employment decreased by ability to Korean. Sixth, desire of identityfrom employment and self esteem to employment increased with the number of children. Seventh, employment desire influenced employment volition, self efficacy and self esteem to employment.

일본형 고용시스템과 고령자 고용

김옥암 한일경상학회 2009 韓日經商論集 Vol.42 No.-

The main purpose of this paper is to analyze a change of employment practice and the structure of labor market in Japan and to draw suggestions on employment of the elderly, focusing on a relationship between Japanese employment system and employment of the elderly. The Japanese employment system was historically reviewed with an analysis of collapse of the systems of long-term employment and seniority-based wage resulted from changes of labor market structure and macro economic environment after the 1990s. Major findings indicate that Japanese companies under the strategy of employment adjustment are recently moving towards a system of ability-based wage with an expansion of nonstandard employment of the young maintaining long-term employment of the elderly in standard employment. Examining the employment of the elderly based on the Lazear model, the author emphasizes an environment overhaul to enhance the productivity of the aged and a need of scheme to increase the number of employees by reducing working hours per worker.

‘TO DREAM THE IMPOSSIBLE DREAM’: AN EXPLORATION OF THE PERCEPTIONS OF ADULTS WITH LEARNING DISABILITIES ON ACCESSING AND MAINTAINING EMPLOYMENT.

( Shyamani Hettiarachchi ),( Lasanthi Daskon-attanayake ),( Dilini Walisundara ) 대구대학교 한국특수교육문제연구소 2018 Asia-Pacific Journal of Intellectual Disabilities Vol.5 No.1

Although symbolically through the ratification of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in February 2016, the Sri Lanka government has pledged support for equal access to employment, the number of persons with disabilities accessing the workforce at present is negligible. In spite of the aim to ‘leave no one behind’, arguably the persons with intellectual disabilities remain the most disadvantaged even within the community of persons with disabilities, and continue to be ‘left behind’ from accessing education and employment. This study aimed to explore and document the perceptions of adults with learning disabilities on accessing and maintaining employment. Unstructured in-depth qualitative interviews were conducted with 16 adults with intellectual disabilities. A qualitative analysis of the interview data was undertaken using the key principles of Framework Analysis to uncover emergent themes. One key theme to emerge was of restricted opportunities to access employment of any form, whether volunteer or paid, or sheltered or mainstream. The only participant in part-time employment was in an unpaid volunteer position arguably reflecting a charity model of disability. When opportunities were available to engage in paid work, in the case of two participants, they reflected contentment, even if appearing vulnerable to exploitation. All the participants not in employment at present, shared ‘dreams’ of accessing to employment in the future, some in realistic fields and some in currently unrealistic fields, often wanting to emulate their siblings. Adults with intellectual disabilities share similar hopes and dreams of employment, in the face of limited frameworks to support transition from education to employment. In order to achieve ‘employment for all’, national inclusive employment frameworks need to be developed at a policy level, which encourage the ‘supported employment model’4 of job-matching and on-the-job training.

약관과의 비교를 통한 취업규칙 규제의 문제점

정명현 민사법의 이론과 실무학회 2010 民事法理論과 實務 Vol.13 No.2

Employers are willing to pre-formulate the terms of employment to enter into contracts with employees. Employers enact in the field of labor contracts the rules of employment for the purpose of concluding agreements with multiple employees, whereby the contractual partners of the employer, i.e. the employee are in a similar position as consumers confronting standardized contract terms of entrepreneur enjoying privileged market position. Employers, who will act as less-controlled entrepreneurs, are mighty enough to dictate the individual terms of contracts. Entrepreneurs have power to determine every and each condition of such contracts unilaterally in an overwhelming position, which would lead to the inevitability of making one of the two extreme choices, so to say take it, or leave it situation. When it comes to labor problems, the cause of these typical situation lies in imbalance of possibility to have influence on the contract terms, which originates from the deficiency of a third choice on the side of the contractual partner, or rather, employee. The Regulation of Standardized Contracts Act is enacted to establish sound order in business transactions and thus to protect consumers from confronting standardized contracts containing standardized contracts with unfair terms and conditions in them. Like the standardized contracts, the terms of employment containing unfair terms and conditions which correspond to the abuse concept of their prevailing negotiation position needs legal regulation. Therefore, the terms of employment is regulated by the Labor Standard Act. This study shows the difference between the regulations on the dimensions of contract- and/or consumer law and labor law, respectively. In case of standardized contracts, an entrepreneur shall clearly state to his customers the terms and conditions of standardized contract and deliver a copy of it and help the customer understand it. If an entrepreneur violates this article, he may not have the standardized contract terms integrated in the relevant contract. However, in case of the terms of employment, there is no any statutory provision ruling the legal effect when an employer has not satisfied all the requirements. This problematic reality is accessible to disputes in each specific cases. Where any part of the standardized contracts is null and void under article 6 through 14 that govern the legal effect of unfair clauses in standardized contracts, the relevant contract shall not be null and void as a whole pursuant to the Regulation of Standardized Contracts Act. But where any part of the terms of employment is unfair or unfavorable to the consumers, the relevant provision is recommended to be corrected properly by way of administrative guidance which has no legal binding force. A person who has legal interests and a third party who is consumer-related organization etc may request for examination whether the standardized contract violate the Act. But there is no such statutory provision in case of unfairness of the terms of employment. There is an obvious difference in the penalty imposed to a person who fails to comply to an order of the Fair Trade Commission or the Ministry of Employment and Labor between standardized contracts and the terms of employment. The Regulation of Standardized Contracts Act provides the detailed rules about the standard contract terms used in relevant transactions. The Ministry of Employment and Labor promulgates with authority the standard terms of employment and distributes it to the employers, but legal basis is lacking and could hardly be more than a detailed guidance served as a sample. Wide usage of such standard terms of employment requires the process.

조세의 변동이 종사상 지위별 고용에 미치는 영향 분석

이종하,김유빈 한국산업경제학회 2019 산업경제연구 Vol.32 No.3

This paper examines the impact of tax policy changes on employment creation by employment status of workers in Korea. It is used 4 different types of taxes, such as income tax, corporate tax, goods and services tax and social security contribution, and We use a structural vector autoregression (SVAR) model incorporating the identifying restrictions suggested by Blanchard and Perotti(2002). The analysis proceeds in estimating the structural impulse-response functions and the multiplier effects of fiscal variables. The estimation results indicate that the impacts of structural tax shocks on employments provide a variety of results without the types of employment status. Specially, the reductions of most of income tax and corporation tax increase the employment regardless of employment status. On the other hand, goods and services tax have a positive effect on employment regardless of employment status. The reduction of social security contributions reduces the overall employment, but the direction of the sign varies depending on the status of employment. Therefore, we can infer that the effect of employment creation in tax policy may be different depending on the characteristics of tax items or the status of employment of employees. Tax exemption also shows that job creation can be somewhat effective. 본 연구는 우리나라의 1994~2015년 기간 분기별 자료를 이용해 조세수입의 변동이 고용형태별 고용에 미치는 영향을 실증적으로 분석했다. 구체적으로 본 연구는 우리나라 거시경제가 대표적으로 조세수입, 재정지출 및 취업자 수로 구성된다고 가정한 3-변수 SVAR 모형과 Blanchard and Perotti(2002)의 식별조건을 이용해 분석을 시도했다. 조세수입을 중심으로 추정결과를 요약하면 다음과 같다. 첫째, 전체 조세수입의 경우, 조세수입의 충격이 전체 취업에 미치는 영향은 효과가 매우 단기간에만 나타났고, 취업자의 종사상 지위에 따라서 그 영향이 다소 상이하게 나타났다. 즉 비임금근로자, 자영업자 그리고 임시직 임금근로자는 양(+)의 영향이 나타난 반면, 전체, 상용직 및 일용직 임금근로자에 대해서는 음(-)의 영향을 미치는 것으로 나타났다. 둘째, 조세수입 항목과 취업자의 종사상 지위별로 다른 결과를 보였다. 즉 소득세는 취업에 대해 취업자의 종사상 지위에 관계없이 음(-)의 영향을, 법인세는 임시직 임금근로자를 제외하고는 종사상 지위에 관계없이 음(-)의 영향을 미치는 것으로 나타났다. 반면, 재화와 용역세는 취업에 대해 취업자의 종사상 지위에 관계없이 양(+)의 영향을 미치는 것으로 나타났다. 사회보장기여금의 감소는 전체 취업을 감소시키는 것으로 나타난 반면, 종사상 지위에 따라서 그 부호의 방향이 상이한 결과를 보였다. 이상의 결과는 조세정책의 고용창출효과가 조세항목별 특성이나 취업자의 종사상 지위에 따라 그 영향이 상이하게 나타날 수 있음을 제시한다. 또한 조세감면은 고용창출에 다소 효과적일 수 있다는 결과를 보여준다.