이원석 변호사만일 운전기사가 Independant contractor 가 아니고 직원으로 간주 가 된다면 오버타임을 지불 하셔야 합니다. 말씀을 보아서는 운전 기사가 완전한 Independant contractor 라고 보기에는 힘들것으로 생각이 듭니다.
일단 Independant contractor 로 인정을 받을려면,
•1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
•2. Whether or not the work is a part of the regular business of the principal or alleged employer;
•3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
•4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
•5. Whether the service rendered requires a special skill;
•6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
•7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
•8. The length of time for which the services are to be performed;
•9. The degree of permanence of the working relationship;
•10. The method of payment, whether by time or by the job; and
•11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.
하지만, 노동청에 일단 나가시는게 좋을듯 하고, 합의를 하실것을 권유 합니다.
