미국 공동사용자 법리의 현황과 시사점 ― 브라우닝 펠리스 결정과 그 이후의 전개를 중심으로 ―

We review the current state and implications of joint employer law in the U.S., focusing on the NLRB's Browning Ferris decision, the D.C. Court of Appeals' decision, and the NLRB's proposed 2020 Rule and 2022 Rule. On appeal from the NLRB's Browning Ferris decision, the D.C. Court of Appeals recognized indirect control and retained control as factors in the joint employer test, but remanded because it found that Browning Ferris overstepped the bounds of common law by conflating indirect control with general contractual factors in its consideration. The Board will need to answer the question of how to distinguish between indirect control and ordinary contractual elements in the context of a prime-subcontractor relationship. The Biden administration's NLRB promulgated a 2022 rule that listed “basic working conditions” and paralleled direct and indirect control as joint employer criteria. This is in contrast to the 2020 rule promulgated by the Trump administration's NLRB, which only recognized indirect control as complementary to direct control. The above discussion from the United States has significant implications for individual and collective labor relations in Korea. To summarize, with regard to the distinction between dispatch and contracting in individual labor relations, it is appropriate to recognize dispatch as dispatch even if the degree of the principal's command over the workers is weak, as long as the degree of involvement in determining the “basic working conditions” is high. In relation to the discussion on recognizing the employer's employability under the substantial control theory in collective bargaining, it is necessary to further elaborate the jurisprudence of the substantial control theory.