한국사회법학회

As a counterpart of collective bargaining and in principle, the term employer is defined as an entity that forms a working relationship and a party who enters into a labor contract. However, a view suggests the introduction of the American approach to the legal principles of joint employer to expand the nature of employers as a party in collective bargaining. In other words, actively considering the expansion of the concept of an employer under the Trade Union and Labor Relations Adjustment Act (hereafter referred to as “TULRA”) is necessary. Such a concept of an employer introduces the company that influences the working conditions of indirectly employed workers in indirect employment relationships. If so, the legal principle of joint employer in the U.S. should be well understood. When applying the legal principle of joint employer, it is considered the standard for recognizing the joint employer and a dispute between parties. In the case of specific judgments, the final rule emphasizes substantial direct and immediate control. Currently, the National Labor Relations Board’s final rule requires that direct and immediate control of essential terms and conditions of employment must be substantial to create a joint employer status. Recognizing the status of joint employer based on the essential terms and conditions of employment of employees, such as hiring, discharge, discipline, supervision, and direction, is a strict standard or requirement is similar to the legal principle of implicit labor contract in Korea. Therefore, the view regarding the need to actively consider the inclusion of companies that influence the working conditions of indirectly employed workers indicates poor understanding of the legal principle of joint employer in the U.S. In other words, for the status of joint employer to be recognized, influencing the working conditions of indirectly employed workers, such as subcontract workers, is insufficient. Standards and requirements should be present in establishing an implicit labor contract relationship in Korea. Moreover, the standards of joint employer in the U.S have been pointed out; however, such standards were not consistently established in law and practice, indicating the instability of the legal principle. To address this legal instability, the National Labor Relations Board enacted and implemented the joint employer status’ final rule, that is, to enhance labor–management stability by promoting predictability and consistency in determining such status. The final rule particularly allows the National Labor Relations Board to clarify certain aspects of joint employer standards than can be achieved through decisions. Moreover, such a rule addresses the legal instability that thwarts consistent legal principles for approximately 30 years (1984–2015). Nevertheless, within a short period of indirect control in the U.S. (2015–2019), expanding the role of employers as one of the parties in collective bargaining began to have problems in gaining implications through comparative legal research and ensuring legal stability by applying legal principles. Moreover, in the U.S., the function of the legal principle of joint employer has limitations in terms of collective labor–management relations. The fact that the employer (original company) takes on the position of joint employer does not make the joint employer the subject of collective bargaining obligation under the National Labor Relations Act. It should be based on determining the appropriateness of the bargaining units to be the subject of the obligation. This is a notable point in expanding the role of the employer as a party in collective bargaining.