JILPT Research Report No.207
Overseas Labor Policy Trends concerning Employment-Like Working Styles:
A Survey of Germany, France, the UK, and the US

February 26, 2021

Summary

Research Objective

This research, conducted by a request of the Ministry of Health, Labour and Welfare, explores trends in labor policy concerning employment-like working styles in other countries (Germany, France, the UK and the US) with the aim of organizing and prioritizing issues focusing on employment-like working styles, and obtaining useful suggestions for designing Japanese labor policy.

Research Method

Literature review, and field survey with interviews

Key Findings

1. In the latter half of the 20th century, while ambiguous employment (employment-like working style in this research) became increasingly common, judgments on whether workers qualified as “employees” were left up to courts of law. In Germany, France, and the UK, courts viewed the notion of an “employee” as a uniform and consistent idea, though there were development toward broadening the notion, in the end there was little expansion. As a result, it was not possible to extend necessary social protection to employee-like persons who did not meet the conventional definition of “employee.” Thus, in these countries, the social protection of employee-like persons had to be addressed through legislative resolution. Meanwhile, in the US the notion of “employee” is a basic one, but it is not understood in a uniform and consistent manner, and courts initially adopted criteria based on employers’ control. Subsequently, however, the courts used an economic realities test for those covered by the Fair Labor Standards Act to expand the notion of employee.
2. Regarding social protection for employee-like persons, based on examination of circumstances in each country, approaches to these protections can be classified as: (i) introducing an intermediate category between employees and the self-employed (such as “employee-like persons,” etc.) and partial application of labor and social security laws to this category, (ii) defining employee-like persons separately for the purposes of each law and taking legislative measures to provide necessary (special) protections accordingly, and (iii) expanding the notion of “employee” so that employee-like persons can be classified as “employee” and protected (known as “correction of misclassification”).
3. In recent years, there has been a trend to protect employee-like persons (crowdworkers, etc.) who work outsourced or contracted through platform operators, and in France legislative measures have been taken to provide a certain degree of protection while clarifying that those workers are not “employees,” while the UK and Germany have not currently taken legislative measures. In the US, a court in California has interpreted the notion of “employee” broadly and ruled that these employee-like persons are “employees.”

Policy Implications

1. In Japan, as well, disputes over whether employee-like persons qualify as employees are increasing, and courts have a position on “employee” under the Labor Union Act more broadly than under the Labor Standards Act. In individual labor relations, however, the notion of “employee” is uniform and consistent, with subordination to an employer as a criterion. Some theories have criticized this perspective of the courts. Considering the fact that courts in the UK, Germany and France continue to adhere to traditional interpretations of the notion of “employee” centered on economic dependency and control, it appears that because the notion of “employee” is a uniform and consistent under individual labor laws in Japan as well, it will take a great deal of time for this notion to be reconsidered.
2. Japanese labor law maintains the traditional dichotomy of an employee versus a self-employed worker, but in light of trends in various countries, it seems that it is time to review this basic structure. The three approaches, (i) to (iii), listed above are thought to offer important hints for consideration of the social protection systems in the future. Which of these three approaches to adopt, or whether to adopt some other approach altogether, would be serious issues at stake. In Japan, where the notion of “employee” in individual labor relations is uniform and consistent, it seems appropriate for the time being to explore approaches (i) and (ii). Japan does not have intermediate categories as in the UK and Germany, still, it has social protection systems for the self-employed such as the provisions of the Home Work Act and a special insurance for the workers’ accident compensation insurance system. Considering these circumstances, it is conceivable that labor policy could take the direction of building on existing systems such as the Home Work Act and the special insurance for the workers’ accident compensation insurance system.
3. In Japan, as well as other four countries, social protection for workers who work on consignment or under contracts with platform operators are being discussed. In light of the disparate nature of trends in various countries, however, the direction that social protection for these workers cannot be said to be clearly defined.

Policy Contribution

Based on this study, two authors of this research reported on trends of labor policies, etc. in the four countries covered, in the Ministry of Health, Labour and Welfare’s 5th and 8th Study Meetings on Work Style Similar to Employment (5th session, February 13, 2019, and 8th session, March 22, 2019).

These findings will be used by the Ministry of Health, Labour and Welfare and other ministries and agencies in the future when considering measures related to employment-like working styles.

Main Text (available only in Japanese)

• JILPT Research Report No.207, full text (PDF:3.4MB)

Research Category

Themed research: “Status of Implementation of Systems Relating to Employment-Like Working Styles Overseas”

Research Period

April 2018 - March 2020

Authors

KAMATA Koichi

Professor Emeritus, Toyo University

ASHINO Norikazu

Professor, Faculty of Law, Toyo University

HOSOKAWA Ryo

Professor, Faculty of Law, Aoyama Gakuin University, and former Vice Senior Researcher, the Japan Institute for Labour Policy and Training

IWANAGA Masaaki

Professor, Faculty of Law, Kyoto Sangyo University

HASEGAWA Satoshi

Professor, School of Law, Senshu University

NAITO Shino

Vice Senior Researcher, the Japan Institute for Labour Policy and Training

YAMAZAKI Ken

Associate Professor, School of Business Administration, Meiji University, and former Senior Research Officer, the Japan Institute for Labour Policy and Training

Category

Diversified working styles, Employment / Unemployment

Related Research Results

• JILPT Research Report No.206 Content Analysis of Labor Standards Inspection Documents related to Worker Status (2021)
• JILPT Research Report No.205 Comparative Legal Study of Workers’ Compensation Insurance Systems: Status and Issues of Japanese Law in View of Current German, French, US, and UK Law (2020)
• Discussion Paper 20-02: The “Good Work Plan” in UK Labor Law Policy: Background and Specific Contents of the Good Work Plan (2020)
• Research Material Series No. 219, “Home Based Work Systems in Other Countries: Germany, France, the UK and the US (2019)
• Overseas Labor Information 19-07, Survey on Platform Business in Other Countries: the US, the UK, Germany and France (2019)
• Research Materials Series No. 214, Comparative Examination of Scope of Labor Law Application to Personnel (2019)
• Research Series No. 187, Status of Independent Self-Employed Work (2019)
• Research Material Series No. 117, Survey on Home Based Work in Other Countries (2013)

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