인턴십의 양극화와 정부의 인턴 보호 지침 (Polarization of Internships and the Government Guidelines for Intern Protection)

서지정보

· 발행기관 : 한국비교노동법학회
· 수록지 정보 : 노동법논총 / 40권 / 395 ~ 444페이지
· 저자명 : 조성혜

초록

In recent years, internships have become more pervasive than ever before in Korea. This is largely attributable to the recession, which made internships a necessity for most students and graduates. Today, students and graduates apply for, and willingly accept, internships, hoping to obtain real-world experiences. Even if the work is unpaid, it is undertaken by the applicants with the presumption that the opportunity will serve as a stepping-stone to their prospective careers. Thus, for many young Koreans, internships are a matter of economic survival, as they provide the work experience that is necessary to be competitive in today's labor market.
However, internships are not entirely a product of economic necessity. Aside from increasing one's marketability, internships provide many intangible benefits that are important to the applicant. Internships allow young graduates to explore an industry before taking on the permanent job. Other intangible benefits include learning basic workplace skills like work ethic, leadership, and responsibility.
Not surprisingly, some employers have taken advantage of the rising demand for unpaid internships. Just as recent graduates are seeking out internships more than ever before, employers are happy to make room for the free labor. The more graduates are eager to work for free, the more employers are eager to let them.
Notably absent from the unpaid internship debate, however, is any distinction between the types of internships at issue. It should not be used the same criteria for an unpaid intern and a paid intern in large company.
The Labor Standard Act(LSA) does not define interns. Rather, the Act’s protections apply to all employees. Therefore, the threshold question in every unpaid intern case is whether the intern is an employee under the LSA. Unfortunately, the LSA leaves the question unanswered by providing a circular definition of employee: “any individual who provides works for the wage”. Therefore, courts have to search for guidance regarding unpaid internships under the LSA. But the Supreme Court has not yet to address the legality of the unpaid internship clearly.
In that respect Trainee’s Manual of the Ministry of Education and Work Experience Guideline of the Ministry of Employment and Labor, which prescribe the process of the training, protection of the trainee, and the guidance for the distinction of interns and employee, can be regarded as a meaningful step to the establishment of the legal status of interns. The government, thus, plays a vital role in updating the law and pushing reform to ensure that those who engage in substantive work are fairly compensated, that employers do not have an incentive to substitute paid workers with unpaid interns, and that all workers, including unpaid interns, have equal protection from harassment and discrimination. Educational institutions should also participate in such reform by ensuring internship opportunities for their students.
Nevertheless it should not be overlooked that ambiguous statutory language, unclear legal precedent, and non-binding government’s interpretation could result in courts’ applying inconsistent standards to determine the employment status of interns.
A bright line rule for determining when an intern qualifies as an employee under the LSA is critical to settle the uncertainty in this area of the law. At any rate more courts will address the legality of the unpaid internship, and will undoubtedly formulate new tests and build upon the old.

영어초록

In recent years, internships have become more pervasive than ever before in Korea. This is largely attributable to the recession, which made internships a necessity for most students and graduates. Today, students and graduates apply for, and willingly accept, internships, hoping to obtain real-world experiences. Even if the work is unpaid, it is undertaken by the applicants with the presumption that the opportunity will serve as a stepping-stone to their prospective careers. Thus, for many young Koreans, internships are a matter of economic survival, as they provide the work experience that is necessary to be competitive in today's labor market.
However, internships are not entirely a product of economic necessity. Aside from increasing one's marketability, internships provide many intangible benefits that are important to the applicant. Internships allow young graduates to explore an industry before taking on the permanent job. Other intangible benefits include learning basic workplace skills like work ethic, leadership, and responsibility.
Not surprisingly, some employers have taken advantage of the rising demand for unpaid internships. Just as recent graduates are seeking out internships more than ever before, employers are happy to make room for the free labor. The more graduates are eager to work for free, the more employers are eager to let them.
Notably absent from the unpaid internship debate, however, is any distinction between the types of internships at issue. It should not be used the same criteria for an unpaid intern and a paid intern in large company.
The Labor Standard Act(LSA) does not define interns. Rather, the Act’s protections apply to all employees. Therefore, the threshold question in every unpaid intern case is whether the intern is an employee under the LSA. Unfortunately, the LSA leaves the question unanswered by providing a circular definition of employee: “any individual who provides works for the wage”. Therefore, courts have to search for guidance regarding unpaid internships under the LSA. But the Supreme Court has not yet to address the legality of the unpaid internship clearly.
In that respect Trainee’s Manual of the Ministry of Education and Work Experience Guideline of the Ministry of Employment and Labor, which prescribe the process of the training, protection of the trainee, and the guidance for the distinction of interns and employee, can be regarded as a meaningful step to the establishment of the legal status of interns. The government, thus, plays a vital role in updating the law and pushing reform to ensure that those who engage in substantive work are fairly compensated, that employers do not have an incentive to substitute paid workers with unpaid interns, and that all workers, including unpaid interns, have equal protection from harassment and discrimination. Educational institutions should also participate in such reform by ensuring internship opportunities for their students.
Nevertheless it should not be overlooked that ambiguous statutory language, unclear legal precedent, and non-binding government’s interpretation could result in courts’ applying inconsistent standards to determine the employment status of interns.
A bright line rule for determining when an intern qualifies as an employee under the LSA is critical to settle the uncertainty in this area of the law. At any rate more courts will address the legality of the unpaid internship, and will undoubtedly formulate new tests and build upon the old.

참고자료

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