장애인 직업재활시설과 근로장애인에 대한 최저임금 배제 — 한국, 독일, 미국의 법제 비교를 중심으로 —

Abstract

In Korea Section 7 of the Minimum Wage Act allows exemptions from the minimum wage in the case of employee whose productivity is seriously impaired by mental or physical disabilities. Any employer otherwise required to pay the minimum wage can obtain authority from the Department of Employment and Labor to pay the lower wage rates permitted by law. The most person to whom the exemptions apply are people with disabilities in sheltered workshops. Sheltered workshops were conceived as facilities where employment opportunities were set aside for employees with disabilities, usually at a low wage, and were sheltered from competition by individuals without disabilities. They also provided an opportunity for people with significant disabilities to pursue a life that included work, socializing, and a sense of belonging. Sheltered workshops were seen as progressive, and a means of employing those who could not compete for jobs in the community. Exempting disabled employees from the minimum wage, however, would be likely to increase discrimination against disabled people by giving a signal to employers that disabled employees can be treated less favorably. In this regard Korean disability rights organizations have opposed minimum wage exemptions for the person with disabilities on the grounds of discrimination based on disabilities. But Korea is not the only country involved in policy issues regarding the employment of people with disabilities in sheltered workshops and minimum wage exemptions. Similarly, many countries have made use of sheltered workshops for employment of the disabled. The debate over sheltered workshops and the minimum wage exemptions is part of a larger issue of the employment needs of people with significant disabilities in most countries. This study provides an overview of the policy measures to encourage the employment with disabilities particularly in sheltered workshop and minimum wage exemptions in Korea. It will trace the history of the use of sheltered workshops and disability law policy in Germany and the United States. Next, it will examine existing laws and policies on the employment of disabled persons in sheltered workshops in these countries. The arguments for and against the use of sheltered workshops and minimum wage exemptions will also be considered in this article. Finally, it will be argued that Korean policymakers should find alternative minimum wage exemptions for the disabled, possibly through the use of sub-minimum wage or the difference pay between sub-minimum wage and average wage by the state. Especially disabled employees with very low levels of productivity should helped through supported employment programmes, subsidized through the state.