판례를 통해 본 미국 공정근로기준법상의 근로자의 의미

• 영문명: The Definition of Employee in U.S.A Fair Labor Standards Act Based on Case
• 발행기관: 원광대학교 법학연구소
• 저자명: 황경환(Hwang, Kyong-Hwan)
• 간행물 정보: 『원광법학』제25권 제2호, 273~297쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.06.30

영문 초록

The purpose of this paper is to study and research legal definition of employee in US fair labour standard act(hereinafter referred to as FLSA). The purpose of FLSA is to protect employee in the labour relations with employer. FLSA provides many legal rights for employee such as minimum wage, overpaid wage, children labour record keeping and equal payment. FLSA 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 FLAS. The decision of who is employee is precondition for employee to enjoy the legal rights given in FLSA. The concept of employee in FLSA has been established by the Court decisions under the common law doctrine and economic reality test principle which deserve academic legal analysis. This paper mainly dealt with economic reality test principle with many Court cases in order to grasp the substantial meaning of FLSA employee compared with common law employee. Summarily speaking, economic reality test requires many factors to be considered in making a decision as to who is employee or independent contractor. These factors being made between employer and employee are important criteria to determine FLSA employee. In discerning economic realities of given working relationship for purposes of determining whether worker is employee, rather than independent contractor under Fair Labor Standards Act, factors include: nature and degree of alleged employer's control as to manner in which work is to be performed; alleged employee's opportunity for profit or loss depending upon his managerial skill; alleged employee's investment in equipment or materials required for his task, or his employment of workers; whether service rendered requires special skill; degree of permanency and duration of working relationship; and extent to which service rendered is integral part of alleged employer's business; question is whether factors demonstrate that workers are independent contractors in critically significant sense that they are in business for themselves. The above six-factor test developed by Department of Labor's Wage and Hour Division is not necessary to be met FLSA employee. IT is totality of circumstances test. The final conclusion from the reading court cases held based on economic reality test for determination FLSA employee is that Courts have tried to enhance the scope of FLSA employee compared with employee in National Labour Relations Act which regulates labour relations between union and employer. Also US courts continuously have kept balance with speedy, flexible and complicated labour environments in between employer and employee relations. According to the open global labour market, we who especially are closely related to US economy need to keep tracking the legal information of labour market.

목차

Ⅰ. 서 론

Ⅱ. FLSA의 근로자규정 해석

Ⅲ. 미국 판례상의 근로자의 의미

Ⅳ. Economic reality test doctrine과 헌법 및 근로계약의 일반원리와의 관계

Ⅴ. 결 론

참고문헌

Abstract

키워드

근로계약 미국공정근로기준법 근로자 사용자 독립계약자 최저임금제 고용 시장경제 labour common law test economic reality test employee employer Fair Labor Standards Act totality of circumstances