미국 국가 노동관계법상의 근로자의 의미

The purpose of this paper is to study and research legal definition of employee in US National Labour Relations Act(hereinafter referred to as NLRA). The purpose of NLRA is to protect employee in the labour relations with employer and labor organization. NLRA provides many legal rights like forming, joining, and assisting labor organization for employee while FLSA provides minimum wage, overpaid wage, children labour record keeping and equal payment. NLRA simply stipulates that employee means any individual employed by an employer. It is not easy and sufficient to distinguish who is employee or independent contractor with the brief provision of employee definition in NLRA. The decision of who is employee is precondition for employee to enjoy the legal rights given in NLRA. The concept of employee in NLRA has been established by the Court decisions under the common law doctrine which deserves academic legal analysis. According to the court which adopts common law standard about whether relationship is that of employer and employee or is one of independent contractor, all incidents of work relationship must be assessed and weighed, and among factors to be considered are right to hire and discharge, method and determination of payment, whether person doing work is engaged in independent business or enterprise, whether he stands to make profit on work of those under him, which party furnishes tools or materials, who has control of premises where work is done, whether relationship is of permanent character, skill required in particular occupation and who designates where work is to be performed. This method by court is a little different from that of determination of employee of FLSA which focuses on economic reality between employer and employee. On the contrary employee under National Labor Relations Act centers on employer's ability to control purported employee; word “control” suggests need for examination of many characteristics of employer-worker relationship which may include a payment for services as determined. But all this standard is not fixed but changeable by the labor situation. The USA NLRA provision defining the concept of employee can not cover real labor market situation where new kinds of job appears and disappears rapidly. The only resolution for solving the problems about who is employee or not is just up to the judges who has authority to interpret the abstractive law. So in order to grasp the legal meaning of employee, we have to analyze the case which is also not easy for us to understand. The case defining the employee shows many factors to be employee. This paper deals with and reviews factors and legal principles for deciding on NLRA employee.