미국에서의 플랫폼 종사자의 근로자성 판단기준

In the United States, like Korea, the problem to judge a platform worker as an employee has occurred. In particular, with the emergence of new employment types such as O2O, on-demand, and crowdsourcing, it has become the center of discussion under employment and labor laws. The United States defines the concept of employee under the Fair Labor Standards Act and the National Labor Relations Act as federal laws, but it is very abstract and not specific so that there is a limit to judge a worker as an employee. Therefore, Courts and the Federal Labor Relations Board have established various criteria for distinguishing between employees and independent contractors. Various criteria are traditional ones for distinguishing between employees and independent contractors and depending on the cases, the common law or control test, economic realities test, and hybrid test have been applied. Among them, the economic realities test is mainly used as a criterion for determining employee’s characteristics under the Fair Labor Standards Act, while the control test is mainly used as a criterion for determining employee’s characteristics under the National Labor Relations Act. In recent years, the ABC test in California has emerged as a judgment standard to distinguish between employees and independent contractors. The criteria for judging the employee's characteristics and related cases of U.S. platform workers have great implications for South Korea. First, since the United States has established three traditional criteria for decades through precedents, platform workers have also been judged through these criteria. For this reason, the criteria for judging employee's characters under the case laws will not be easily changed or abolished. Second, these results are expected to affect several states in the future, as a law excluding the California's AB-5 law, that is, Proposition 22 that has been judged to be constitutionality by the state Supreme Court.