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Most federal statutes protect only “Employees” and not independent contractors. Unfortunately for employers, most of these statutes do no meaningfully define the term “employee.” Historically, the courts have filled that vacuum and have, by and large, defined it differently according to what federal circuit they sat in and what statute they were interpreting. This section will explain how the courts define “employee” with respect to the major federal statutes that employers must interpret each and everyday The Internal Revenue Service (“IRS”) has developed a long litany of regulations and opinions regarding the classification of workers. Companies have different tax obligations depending on how they classify their workers. From a tax payment standpoint, it is in the employer’s best interest to classify their workers as non-employees. But companies who choose not to classify their workers as “employees” may run the risk of incurring penalties for misclassification, which includes restitution and interest. While the term “employee” is defined slightly differently for each of the federal employment taxes discussed above, one principal test of employee status applies for purposes of all federal employment taxes. That is the common law test. A worker who qualifies as an employee under the common law test qualifies as such for purposes of all federal employment taxes, unless an exception applies. An employer-employee relationship will exist: The IRS recognizes that companies may have difficulty applying the 20 factors so it issued non-binding training guidelines. These Guidelines distill the “important” factors into the three categories discussed below: (1) behavioral control; (2) financial control; and (3) the relationship to the parties. This test is just another way for employers to determine whether a worker is an employee or an independent contractor. However, this test is non-binding and the 20 factors remain the most reliable criteria to use to determine the status of the worker. The Fair Labor Standards Act (“FLSA”), and its many state counterparts, govern the payment of minimum wages and overtime to employees. More than any other, this statute poses the greatest risk to employers, as plaintiff’s attorneys increasingly use the FLASA as a basis for large collective actions. The number of FLSA collective actions filed has dramatically increased each year since 2000 : in 2008 there were 2418 actions filed, compared to just 349 in 2000- an increase of almost 700 percent. When Congress enacted the FLSA, it defined the term, “employee” with a rather vague explanation, so the courts have stepped in to provide some guidance. The FLSA utilizes “economic realities” to determine whether the worker is an employee or independent contractor. This test focuses on whether an individual is economically dependent on the business to which he provides services, thus establishing employee status, or whether the worker effectively is in business for himself. But the Circuits are split as to what factors should be considered. For example, the Ninth Circuit employs a four factor test to determine whether a worker is an independent contractor, considering whether the employer : (1) had the power to hire and fire the worker; (2) controlled the hours and / or other employment conditions; (3) controlled the level and method of payment; and (4) maintained employment records. The second and fifth Circuits use a five-factor test, while the Sixth and Tenth Circuits employ six factors in their analysis.

Stepping up the timing is necessary in order to improve on the dual structure of the current labor market and achieve ‘structural reform (Labor innovation) of the labor market’. However, there have been fundamental disagreements within the tripartite of labor, management, and government on a basic understanding of the employment situation and comprehensive countermeasures for irregular positions. It is very difficult to reach compromise and concession and resolve these problems in a short period of time. This thesis deals with the direction of government labor policy by first seeking to explain the necessity for such labor market policy and protection of employees in accordance with changes in the labor market (II). I also look into labor market law in the structure of labor laws (III), and the constitution and the legal principles behind labor market law (IV). Then, I review major issues in the basic direction of labor market policy and employee protections (V). For the purpose of labor reform that promotes flexibility in the labor market, the major issues where change is needed include retirement age extension, enlarging the scope of ordinary wage, shortening working hours, protecting irregular employees (Short-term Employees Act; Dispatched Workers Act), and loosening the strict regulations on dismissal. Labor market policy has been introduced through various means such as granting incentives to the relevant parties and utilizing market functions. In the process of drafting labor market law policy, labor and management both are becoming more important in terms of participation than before. Furthermore, personnel within labor and management organizations are needing more and more to possess the ability to design policies that suit the times. Cooperation between labor and management is also desperately needed to realize the policies the government is striving to accomplish. From now on, labor reforms should introduce flexibility in the labor market and employment security, with flexibility in the type of employment as well. When the tripartite of labor, management, and government fulfill their roles appropriately, labor reform can be successful.

Selbständige Bauer und Fischer, die mit Schiffe von wenigerem Gewicht als 5 Tonne fahren, sind bei ihrer Arbeit vielfältigen Gefahren ausgesetzt. Die gesetzliche Unfallversicherung schützen diese selbständigen nicht vor ihren Gefahren. Der Hauptgrund dafür: keine gesetzliche Unfallversicherung für Selbständigen. Andererseits bietet die landwirtschaftliche Genossenschaft den Versicherungsschutz für selbständige Bauer, nämlich eine private Unfallversicherung. Über 50% der Prämie dieser privaten Unfallversicherung wird staatlich finanziert. Die Tragweite und der Bereich des Versicherungsschutzes von dieser Unfallversicherung sind im Vergleich mit der gesetzlichen Unfallversicherung zu wenig. Deswegen fordert der Verband der Bauern eine Reform von der privaten Unfallversicherung. Der Gesetzgeber hat am 6.1.2015 das Gesetz zur Unfallversicherung der Landwirtschaft und der Fischerei gegeben. Aber der Reformsinhalt ist enttäuscht. Das Gesetz hat freilich einige Sachen reformiert: 1. Erstellung der rechtlichen Grundlage zur Unfallverhütung, 2. Generalklausel für die Urteilsmaßstäbe eines Unfalls. Sonst hat das Gesetz die private Unfallversicherung genau so wie aufgenommen. Aus der Sicht einer Reform ist das keine <Neuordnung>, sondern eine <Nurordnung>. Die Reform der privaten Versicherung ist in die Richtung nach der gesetzlichen Unfallversicherung zu gehen. Das Gesetz hat hinsichtlich einer Konkretisierung des Gesetzes an dem Verordnungsgeber sehr umfangreichen Auftrag gegeben, so dass es verfassungsrechtlich problematisch ist. Die Verordnungen sind so sehr sorgfältig und vorsorglich vorzubereiten.

The employer’s dismissal of an individual employee is his/her right in the individual employment relationship. If it is decided to be a unfair, disadvantageous disposal, the employee may be subject to judicial remedies through litigation. However, the judicial remedies by the court means a relationship of pursuing judicial justice through strict procedures. It takes long to wait for the relief being made, so the employer will be excluded from the labor relationship and the excessive litigation costs will allow the employee in the poor economic situation to eventually abandon the relief through the court. In the employer’s position, the labor relation due to the prolonged dispute over the dismissal is undesirable. It is the remedy system by the labor committee that is intended to overcome the limitations of the judicial remedies and to remedy the rights of the employer. Therefore, the key of remedies by the Labor Committee is the rapid and fair remedy for rights. The current system proceeds quicker than the remedy by the court. However, It is necessary to shorten the time required from the generation to remedy of such unfair dismissal. In addition, it is necessary to enhance the expertise and judgment of inspectors and judge members in order to ensure fair remedy. If he unfair dismissal is approved, in general, the payment equivalent to the wages for the period from dismissal to reinstatement is ordered. However, the calculation of the amount equivalent to the wages can be problematic. In case the employee refuses reinstatement, he/she will charge the employer the financial compensation, but the time of the compensation applied and the calculation of the amount may be problems. In addition to it, if the employer does not implement the remedial order, he/she will be charged the enforcement fine to force him/her to carry out the implementation. At this time, the specific performance of obligations in relation to the reinstatement and the implementation of payment of the amount equivalent to wages will be a problem. Additionally, it is the reconciliation for the terminal and amicable dispute resolution in conjunction with the rapid remedy by the Labor Committee regarding unfair dismissal. Even under the current system, the settlement by reconciliation is available. However, it is necessary to introduce the pre-settlement system and the compromise recommendation system as a measure to activate the settlement.

It has been 5 years since the time-off system was enforced. Most of the companies completely banned the wages paid to the full-time union officer have been retained as the practice for a long time. But the time-off system is newly introduced and time-off workers that working time is exceptionally exempt are newly recognized as legal status. Even though Many people worried about the time-off system, this system is settled smoothly at most of the companies. Labor in the field, time-off workers do not have found any institutional differences with conventional full-time union officials. Newly recognized time-off system has just a variety of problems and many important tasks are required. According to Kimhae and Yangsan's corporate investigation, time-off system has some merits that lead to the existing union to be changed positively, but on the other hand it has some demerits such as opposing and clash between unions. In conclusion, by means of demanding they be granted the three basic labor rights - to organize, bargain collectively and strike, result from Constitution, article 33 (1) and the right of time-off worker resulted from article 24 (2 and 4) in the Labor Union and Labor Relations Coordination Act, the government try to find possible measures to stimulate on the practical operations for the legal purpose of the time-off system.

In spite of a lot of controversies, Indiana accepted the right to work law on February, 2012 and Michigan also accepted it on December, 2012. Subsequently, on March, 2015, Wisconsin became a 25th state finally after passing the right to work law. In this regard, 25 states out of 50 states have enacted the right to work law and Ohio and New Hampshire have also discussed this bill of right to work. The Federal Supreme Court has interpreted that it is available to enter into the union security agreements between unions and employers under Section 8(a)(3) of the current National Labor Relations Act. By contrast, Section 14(b) of the Act allows each state to enact the law prohibiting union security agreements. That is to say, the Federal National Labor Relations Act recognizes union security agreements, but also gives an legislative power to each state which prohibits the agreements. The first problem resulting from the above circumstances is that giving an authority to enact the right to work law to each state under employee's freedom not to associate is not consistent with the purpose and legislative intent of the National Labor Relations Act. Second, in case that non-union members who have the freedom not to associate are not included in agency shop, it is doubtable on whether or not the duty of fair representation is required by unions for non-union members. Third, as proponents who agree with the right to work law argue, the outlook that the right to work law contributes to the industrial and economic development cannot be seen as the completely effect of union membership rates, employment rates, and average wages.

Thanks to the diversified forms of employment currently being undertaken in South Korea, not only has direct employment (fixed-term work) been established as a type of labor supply, but also indirect employment (dispatched work and subcontract work). In particular, while subcontract work has been observed in the manufacturing or construction industries, such as shipbuilding and car manufacturing, subcontract work has also been expanded to take in the service industry in order to secure employment flexibility and cut down on personnel expenses since the 1997 Asian economic crisis. After enacting the Dispatched Worker Act in 1998, the criterion to distinguish between dispatched and subcontract work has led to severe problems, so the Ministry of Labor set up criterion guidelines to distinguish between those workers and it has also been conducting administrative supervisions. However, as the criterion to distinguish between subcontract and dispatched work is not clear, legal conflicts have constantly arisen with regard to disguised subcontract work or illegal dispatched work. Under these circumstances, the Supreme Court this year ruled on two cases that fall into this category, namely the “KTX female crew members’ case” and the “Hyundai Motors case.” In its ruling on these two cases, the Supreme Court presents common opinions to distinguish between subcontract work and dispatched work. The common opinions are as follows: (1) whether the original contract company can command and instruct workers who were hired by subcontractors by issuing binding orders during the course of their work; (2) whether workers who were hired by the subcontractors are incorporated into the original contract company by working with workers who were hired by the original contractors; (3) whether the original contractor has the right to determine the recruitment and working conditions (the number of workers, education and training, working/break time, vacations, assiduity and so on) of workers who were hired by subcontractors; (4) whether the duties of workers who were hired by the original contractor and by the subcontractor are divided and the workers’ duties have expertise and technology; and (5) whether the subcontract company has independent business organizations or facilities. The Supreme Court warns that it is necessary to examine the above-mentioned elements comprehensively. It can be said that this precedent set by the Supreme Court clarifies the criterion to distinguish between subcontract work and dispatched work. However, questions have arisen as to the legal principles drawn from the Supreme Court’s ruling on the “KTX female crew members’ case” and the “Hyundai Motors case.” The questions are the following: the former is “subcontract work relations” as this case satisfies the five elements mentioned above, and the latter is “dispatched work relations” as the case does not meet all elements. When carefully observing the facts of both cases, however, the elements of subcontract work and the elements of dispatched work are blended together. Nonetheless, like the objects of the Supreme Court’s decisions, the questions about whether an all-or-nothing decision could be possible still remain. Rather, it appears that the conclusions reached about the two cases were formed in advance and then the decisions tried to adapt to those conclusions. With regard to future cases, much attention will be given to how the Supreme Court’s legal principles to judge will be employed and analyzed.