The Study of Criteria to Judge a Platform Worker as an Employee Focused on the Domestic and International Judicial Cases
Authors:   LAW RESEARCH INSTITUTE CHUNGBUK NATIONAL UNIVERSITY, Kim Tae Hyun , Kim Eun Chul 
Published: January 2024

This study aims to examine domestic and international cases regarding the labor status of platform workers and explore policy implications for Korea. Recently, the number of platform workers has significantly increased due to technological advancements. Unlike traditional dependent labor, identifying the actual labor provision relationship of platform workers is challenging. Recognizing the worker status of platform workers is also difficult because they often provide forms of labor that do not meet traditional indicators of worker status. In particular, some users tend to misclassify actual workers as independent contractors to avoid the application of labor laws. There is a need to improve the system to protect platform workers who provide labor for others but are not currently protected by the law. Recently, courts in the United States and other countries have acknowledged the worker status of platform workers. It appears that countries recognize the need for legal protection of platform workers and are strengthening protection by introducing flexibility in determining worker status. In the United States, the California Supreme Court, in the Dynamex case, proposed the ʻABC testʼ as a new standard for determining worker status. The ABC test shifts the burden of proof in worker status cases to the employer, requiring them to prove that (A) the laborer is completely free from the employerʼs direction and supervision, both contractually and in practice, in the performance of the work; (B) the work is outside the ordinary course of the employerʼs business; and (C) the laborer is truly self-employed with a separate and independent business in the same field. The California Supreme Court has made it clear that if the employer cannot prove elements A, B, and C, the labor provider is considered an employee, potentially enhancing protections for platform workers. In Korea, the recent ruling by the Seoul High Court in 2023, recognizing the worker status of platform workers (Tada drivers), has garnered significant attention. Beyond the importance of this ruling for the protection of platform workers, failure to develop Koreaʼs worker concept jurisprudence in a more inclusive direction may render labor laws inadequate in safeguarding various new forms of platform labor and those who provide labor through artificial intelligence and algorithms. Indicators for worker determination and measures for protecting labor providers need to evolve to encompass various forms of labor provision, including platform labor. In this regard, it is noteworthy that courts worldwide are increasingly interpreting the worker test to extend protection to platform workers as recognized workers. While the Korean government is actively working to protect platform workers, there is an urgent need for legal protection for the growing number of platform workers. It is essential to study, review, and improve the system by drawing insights from foreign court cases to ensure comprehensive protection for platform workers.