Osaka District Court Ruling May 29, 2020 (p.17, Rodo-hanrei #1232)

  This is a case in which Professional Driver X, who conducted motorcycle tests several times a year to test tire wear and safety, had an accident during a test run under an outsourcing agreement and suffered a permanent disability.  Labor Standards Inspection Office Y decided that X was not an employee, but the court recognized that X had employee status and ordered payment of insurance money.
   Intuitively, many people may find it incongruous to recognize employee status for a professional driver who also has an international A-Class license.  I felt this way, too.
  However, I can also understand reasonableness of the judgment, when I carefully analyze it.  Let's consider.

1. Determination framework
  The Court determines employee status with the following determination framework.
(1) Form of service provision (whether under supervision and instruction)
・ Freedom to accept or deny requests for specific work, instructions for engaging in activity, etc.
・ Existence of supervision and instruction in the execution of business
・ Existence of restrictions on work place and working hours
・ Existence of substitutability of the service provision
(2) Nature of remuneration being work compensation or not
(3) Factors that reinforce the determination of employee status
・ Existence of entrepreneurial character
・ Degree of personal nature
・ Other circumstances
The court explained that this is the same as Article 9 of the Labor Standards Law.

2. Evaluation
  For each of the above-mentioned determination frameworks, the court analyzed the actual state of operations in detail and applied the frameworks.
  As X is a professional and he received work only when there were orders for test driving, so he has a high degree of independence. In light of the above, some might be doubtful that X has employee status because he has freedom of acceptance, he is not supervised or instructed because the work is left to his discretion, and he is free to work when he wants to, and he is not bound to do so.
  But part-time workers also have also employee status.
  Part-timer workers have high independence, such as freely choosing the job destination or shift, and are similar in status to X. Certainly, considering a job like a store staff in a convenience store or a supermarket, there may be no specialist such as X, but there are also some workers with specialized skills.  For example, if you're an illustrator in your main business, but you're still not selling so much, and you're working on illustrations in a company as a part-timer, you'll find yourself having employee status while you are working in the company.
  In other words, the reason that the rule is difficult to understand is that two problems are mixed.   Even if you have a freedom to choose a work, once you choose work and promise to work there, you will be constrained according to the type of work.  Even though the freedom and likelihood of the former to choose a job is broad, if the latter degree of constraint is relatively greater, then you have employment status.
  In fact, X’s test runs were specified in detail, such as speed and driving method, and such conditions had to be observed.  Certainly, to meet the specified conditions, there may be technique and creativity on the part of each driver, however, such technique and creativity is the same as the finesse and creativity of displaying goods on the shelves of the convenience stores and supermarkets.  There is no discretion in the content of the work itself, and there is only room for innovation in how to do it well. Even if there is room for innovation to some extent, it does not negate employee status.

3. Practical points
  The decision made it clear that the image of a professional not having employee status is not always correct.
  In addition, through this examination, it became clear that the relations between "supervision and instruction" and the freedom to choose work are different in dimensions.
  To reduce the burden of labor management, working styles that deny employee status are sometimes sought as a business model.  In doing so, we need to examine the problems from the viewpoint that even if the person to be hired is a professional, he or she might have employee status.

※  Japanese original

※  Among the Japanese case law books relating to labor and employment law, the Rodo-hanrei is the oldest and most prestigious, having been published since 1967.

※  I am a facilitator of a monthly study that covers all cases in the Rodo-hanrei, at the Japan In-house Lawyers‘ Association, JILA in Tokyo and Osaka, and at the study group of Sharoshi in Tokyo.  This series of articles are the result of the study group.
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