미국 산업안전보건법에서의 도급규제의 법리 전개

The legal principle of risk-controlling employer responsibility relates to the obligation to comply with the standards among the two main tasks borne by the employer under OSHAct. If a employer controls a safety and health risk, the employer is responsible for violating the obligation, even if the worker exposed to the risk is not the worker of the employer. This legal principle results in the ‘addition’ of the obligatory subject. Risk-controlling employer are responsible not because they have labor contracts or equivalent relationships with workers subject to protection, but because they can be expected to reasonably prevent and resolve risks if they are recognized for their control over the safety and health of workplaces and subcontractors through supervisory authority[As a prerequisite for the application of the legal principles of risk-controlling employer responsibility, it is necessary for the workers of risk-controlling employer controller to be in the same workplace].
In this way, the law of responsibility for risk-controlled employers presupposes control of the workplace, and there are two cases in which the responsible person directly controls the workplace(safety and health) as the employer does in the labor contract and indirectly controls the workplace's safety and health. Whether or not the risk controller is responsible is not required for the risk-controlling employer to comply with the text of the standard, as it considers the degree of supervisory authority, the nature of safety and health standards violations, and the nature and degree of preventive measures taken. The law of responsibility for risk control employers has been developed with the construction industry in mind, but theoretically, it can be applied to industries other than the construction industry. However, only a few cases have been applied in reality.
OSHAct does not have separate regulations on safety measures for contract work, that is, protection of subcontractors' workers. As can be seen from the fact that OSHRC decisions and court precedents have been reversed on whether contractors have obligations under OSHAct, there have been many disputes over contract regulation in the United States. In this respect, OSHAct is generally considered to be responsible for the contract work. From this point of view, OSHAct cannot be said to have well-organized safety regulations for contract work as a whole. However, although there was a reversal and confusion of judgment by decision and precedent, legal interpretation has been made on the premise that the contractor is obligated to meet his status and role.
OSHAct does not find the idea of imposing strong obligations on contractors just because they are “contractors' workplaces” without considering contractors' control, work relevance, and specific command and supervision. It is based on the principle that contractors should be obligated to match the status and role of contractors.
Although the obligation to contractors under the Korean Occupational Safety and Health Act seems to be very strong, it actually reveals many loopholes in content, and has many problems in terms of the effectiveness of protecting subcontractors' workers because it does not follow the basic principle that the roles and responsibilities of each obligatory entity should be clearly set. This is what we need to learn most importantly and urgently improve in the regulation and legal interpretation of contractors' obligations under OSHAct.