재채용 배제를 위한 사용자의 명부 작성과 근로기준법 제40조의 적용 (Creating a list for rehire exclusion and applying Article 40 of the Labor Standards Act)

서지정보

· 발행기관 : 노동법이론실무학회
· 수록지 정보 : 노동법포럼 / 43호 / 391 ~ 429페이지
· 저자명 : 오효진

초록

Article 40 of the Labor Standards Act prohibits anyone from creating or using a list for the purpose of preventing a worker from getting a job. Recently, companies operating nationwide distribution centers, such as MarketCully and Coupang, have been caught in trouble for creating blacklists to exclude day laborers from being rehired. The employers argued that the blacklisting was a legitimate exercise of their personnel rights and freedom of recruitment in response to the misconduct of the day laborers. In the MarketCurry case, the prosecutor supported the employer's argument, interpreting Article 40 of the Labor Standards Act as applying only to cases in which a worker's employment at another company was prevented.
This article critiques in detail the basis for the prosecution's decision not to prosecute. After reviewing the legislative history of the prohibition against employment interference and the blacklisting laws of other countries, the article confirms that the provisions of Article 40 of the Labor Standards Act are intended to ensure that workers' right to earn a living by freely seeking employment is not interfered with. There is no reason why a worker's claim for reemployment at a blacklisted company should be treated any differently than a worker's claim for employment at another company. Therefore, if the employer created the list to exclude the worker from being rehired for arbitrary and unconstitutional reasons, it is a violation of Article 40 of the Labor Standards Act because it was intended to interfere with the worker's employment activities.
In order for the exclusion from rehiring to be justified as a de facto disciplinary measure against a day laborer for misconduct, as alleged by the employer, there must be a justifiable reason under Article 23(1) of the Labor Standards Act, and the exclusion from rehiring must be substantial in light of the level of misconduct and equitable in comparison to other workers. In addition, the employer's freedom to hire is limited by legal provisions prohibiting discrimination in employment, so the reason for the rehire exclusion must not be related to a prohibited discriminatory reason. If the employer can prove that it has in fact created a list for legitimate exclusion from rehiring, the behavior can only be evaluated as not violating social norms and therefore not illegal.

영어초록

Article 40 of the Labor Standards Act prohibits anyone from creating or using a list for the purpose of preventing a worker from getting a job. Recently, companies operating nationwide distribution centers, such as MarketCully and Coupang, have been caught in trouble for creating blacklists to exclude day laborers from being rehired. The employers argued that the blacklisting was a legitimate exercise of their personnel rights and freedom of recruitment in response to the misconduct of the day laborers. In the MarketCurry case, the prosecutor supported the employer's argument, interpreting Article 40 of the Labor Standards Act as applying only to cases in which a worker's employment at another company was prevented.
This article critiques in detail the basis for the prosecution's decision not to prosecute. After reviewing the legislative history of the prohibition against employment interference and the blacklisting laws of other countries, the article confirms that the provisions of Article 40 of the Labor Standards Act are intended to ensure that workers' right to earn a living by freely seeking employment is not interfered with. There is no reason why a worker's claim for reemployment at a blacklisted company should be treated any differently than a worker's claim for employment at another company. Therefore, if the employer created the list to exclude the worker from being rehired for arbitrary and unconstitutional reasons, it is a violation of Article 40 of the Labor Standards Act because it was intended to interfere with the worker's employment activities.
In order for the exclusion from rehiring to be justified as a de facto disciplinary measure against a day laborer for misconduct, as alleged by the employer, there must be a justifiable reason under Article 23(1) of the Labor Standards Act, and the exclusion from rehiring must be substantial in light of the level of misconduct and equitable in comparison to other workers. In addition, the employer's freedom to hire is limited by legal provisions prohibiting discrimination in employment, so the reason for the rehire exclusion must not be related to a prohibited discriminatory reason. If the employer can prove that it has in fact created a list for legitimate exclusion from rehiring, the behavior can only be evaluated as not violating social norms and therefore not illegal.

참고자료

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