Employee status and vicarious liability

Black-letter propositions

1. 01

   Employee status emphasizes the principal's right to control manner and means, alongside skill, tools, duration, payment, business integration, and parties' understanding.

2. 02

   Scope includes assigned work and conduct intended at least partly to serve employer.

3. 03

   A commute or substantial personal frolic is usually outside; a minor detour can remain within scope.

4. 04

   Intentional torts can be within scope when force or friction is job related or conduct serves the employer.

5. 05

   Contractor exceptions include nondelegable duty, peculiar risk, apparent agency, and negligent selection or supervision.

Use this attack sequence under time

Common wrong turns

• A contractor label does not control actual status.
• Forbidden methods can still be within scope.
• Vicarious liability does not erase the tortfeasor's personal liability.

Worked example

A delivery employee makes a two-block personal stop and collides while returning to the route.

Practice this topic

Vicarious liability

Cornell says principals can be held liable for the torts of their agents under vicarious liability. A principal is always liable for torts committed while the agent completes official responsibilities, and for torts outside official duties liability depends on whether the tort occurred during a frolic or a detour. Respondeat superior holds an employer or principal responsible for wrongful acts of an employee or agent within the scope of employment or agency, and there is no national standard.

Most jurisdictions use a benefits test or a characteristics test. The characteristics test asks whether the action is common enough for the job to be fairly deemed characteristic of it.

Employees and independent contractors

Independent contractors are entities hired to accomplish tasks who are not subject to the employer's right of control, and they tend to have specialized skills and work for many employers. Employers usually have no vicarious liability for their torts, though certain duties are non-delegable, including inherently dangerous activities and duties to keep premises open to the public reasonably safe.

An employer can also be liable for its own negligence in selecting a contractor or in giving negligent orders, so distinguish vicarious liability from direct negligence in your answer.

The Third Restatement's balancing test

Cornell's respondeat superior entry says the doctrine applies to employees but not to independent contractors, and it lists the Third Restatement of Torts factors for telling them apart. They include the extent of control the parties agreed the principal may exercise over the details of the work, whether the agent is in a distinct occupation or business, and whether the work is customarily done under direction or without supervision.

The other factors are the skill the occupation requires, who supplies the tools and place of work, how long the agent is engaged, whether payment is by the job or by the time worked, whether the work is part of the principal's regular business, whether the parties believe they are creating an employment relationship, and whether the principal is in business. Cornell adds the extent of control the principal actually exercised in practice.

Related points from Cornell

Cornell also notes that in a respondeat superior case a plaintiff typically looks to hold both employer and employee liable, so courts generally turn to joint and several liability in assigning damages. Under the Westfall Act, federal employees are not held liable for wrongdoing within the scope of their employment. Under tax law, independent contractors pay their own Social Security and Medicare taxes.

Frequently asked questions