As the number of freelance workers continues to rise, concerns are growing over the fact that they are not covered by workplace harassment prevention laws. Recently, the cases of former MBC weathercaster Oyoanna and NewJeans member Hani have drawn attention to the issue, highlighting the need for social discussions on the legal status and protection framework for freelancers.
Freelancers exist in various fields, including entertainment, arts, IT development, and platform work. While some earn substantial incomes, many work in precarious environments. Due to the diverse nature of employment types, granting them uniform legal status is challenging, resulting in gaps in legal protection.
Under current law, freelancers are not covered by workplace harassment prevention legislation. This law is based on the concept of an “employee,” which, according to the Labor Standards Act, refers to a person who provides labor under subordination to an employer in exchange for wages. However, freelancers are considered independent contractors who perform work under individual contracts, often without exclusivity or for fixed contract periods, making it difficult to recognize them as legal employees. Additionally, as freelancers are typically not affiliated with a specific company or organization and often juggle multiple contracts, it is hard to hold an employer accountable for workplace harassment. Many also work remotely or in non-traditional workspaces, making it difficult to apply conventional workplace harassment concepts. As a result, freelancers in broadcasting, entertainment, content creation, and platform labor remain in a legal blind spot.
Former weathercaster Oyoanna worked under a freelance contract with MBC, but since she was not legally classified as an employee, she was not protected under workplace harassment prevention laws. Similarly, NewJeans member Hani, as a celebrity under an exclusive contract with her agency, is not recognized as an employee under labor laws. This means that freelancers in the entertainment industry, even when facing harassment within an organization, cannot expect legal protection.
The issue of legal protection for freelancers and non-standard workers is a global concern. Some countries are making efforts to expand their protection systems through legislative improvements.
In the U.S., California introduced the “ABC Test” to strengthen criteria for determining freelancer employment status. According to this test, for an independent contractor not to be classified as an employee, they must: (1) operate without company control over their work, (2) perform tasks that are independent of the company’s core business, and (3) customarily engage in an independently established trade (California Assembly Bill 5, 2019). However, at the federal level, freelancers are still largely considered independent contractors and often excluded from workplace harassment protection laws.
In Japan, the determination of a freelancer’s employment status focuses on subordination and exclusivity. The Labor Standards Act defines employees as those who provide labor under the direction and orders of an employer, a condition freelancers generally do not meet. However, Japan has implemented some protective measures for workers in performing arts and sports industries. In 2021, the Japanese government issued guidelines to prevent unfair contracts and unfair treatment of freelancers (Japan Fair Trade Commission, 2021).
In Europe, different countries have adopted varying protection models. Spain introduced the “Rider Law” in 2021, recognizing delivery platform workers as employees and mandating labor contracts between them and platform companies (Real Decreto-ley 9/2021). Germany and France are also discussing legislative measures to protect platform workers, while the European Union (EU) is advancing legal revisions to safeguard platform workers at the regional level (European Commission, 2022). These developments highlight an international trend toward improving protections for freelance workers.
To protect freelancers and non-standard workers, legal and institutional improvements are needed. Independent contractors should be granted specific legal protections against harassment and unfair treatment. Standardized contracts can help prevent freelancers from being mistreated, and including workplace harassment prevention clauses in contracts could strengthen their safeguards. Additionally, establishing an independent body to handle freelancer complaints and provide remedies, even if they are not covered by workplace harassment laws, should be considered. Legal revisions to protect platform workers, following international examples, may also serve as an alternative solution.
Currently, freelancers face structural limitations in gaining protection under labor laws. However, with gradual improvements happening worldwide, Korea should also take steps to revise its legal framework accordingly. Now is the time to prioritize legal and institutional reforms to protect freelancers.
Some argue that making freelancers full-time employees would resolve their legal protection issues, but this approach may create new problems. Many freelance jobs require flexible working arrangements, and forced regular employment could limit market diversity. Additionally, for companies, the burden of hiring freelancers as full-time employees could reduce freelance job opportunities, potentially shrinking the freelance market. In creative and artistic fields, where project-based contracts are common, mandating regular employment could even harm the industry ecosystem. Therefore, rather than forcing regular employment, a more realistic solution would be to establish separate legal protection measures for freelancers.
Sources:
- California Assembly Bill 5, 2019
- European Commission, Platform Worker Protection Bill, 2022
- Real Decreto-ley 9/2021, Spain Labor Law Revision, 2021
- Japan Fair Trade Commission, Freelancer Guidelines, 2021
