Legal Final Exam Agency and Employment Law Ch 19 04 12 2012 Employment Law Types of Employment Relationships Employer Employee you can control what they are doing and what they are doing for you Employer Independent Contractor Somebody that is hired to perform a specific task This is a temporary employment o Independent Contractor Someone hired to perform a specific task Why do we care about the difference between these two Tort liability Differentiating between Employees and Independent Contractors Fist thing the court is going to look at is the employment contract It will usually specify right upfront which one of these categories this person in being hired as However even though the contract that might say but in reality it might not seem that you are that type of employee contractor The court has to decide this Just because the contract states one thing that might not be what the court rules The will look at all these questions to decide o How much control does the employer exercise over the details of the work If the employer has a lot of control employee If they are doing more of their own thing Independent contractor Contraction workers independent contractors because you are not micro managing their actions We ARE LOOKING AT THE SPECIFIC PERSON UNLIKE 5 o Is the worker engaged in an occupation distinct from that of the employer Do you do something completely different than what this business is about If I am an accountant and I hired a plumber This would not make sense to have him as a permanent employee it would be a independent contractor that I would hire from time to time But the reverse could be true If I own a plumbing business and I hire you to be my permanent accountant Our jobs are different but you are a full time employee o How long is the person employed The more long time the employment then more likely an employee The shorter time then more likely it s an independent contractor o What is the frequency of payment If it s a salary even set payment then more like a employee o Is this type of work usually done under the employer s control in this general position Ex a secretary How much control does a boss have on the employee o Does the employer supply the necessary tools for the work If I hire to build me a house do I expect you to bring your own hammer and tools Yes If you provide it your self then more likely an independent contractor If I provide you the tools then more likely an employee o What degree of skill is required A more skilled then more likely an independent contractor If 1 says employee and three says independent contractor and the contract says employee then court will probably rule independent contractor But these rulings will be on a case to case bases FOR THE EXAM HE WILL GIVE US A DESCRIPTION OF A PERSONS JOB DESCRIPTION THEN WE WILL HAVE TO RULE UNDER THESE QUESTIONS Employer s Liability Tort Liability Varies depending on whether the tortfeasor is an employee or an independent contractor o Employees Principal is liable for both intentional and negligent conduct of employees while acting in the scope of employment If you are an employee your company will be on the hook liable for intentional tort on unintentional tort negligence if you told them not to do it KEY WORDS the company is on the hook ONLY if they are acting on the scope of the job If they commit a tort on vacation or on the weekend on their own time EXEPTION Frolic and detour Activity occurring outside of employment If the tort was committed on the job during working hours the company could say this employee was not doing what they were suppose to Breaks are not included in this exemption because they employer has given you permission of a break EX If you are working for a pizza delivery company and instead of going form house to house delivering pizza you stop by your friends house to play video games and then you get in a car accident on the way there Then company not on hook because they were not action in the scope of the job Technically they were not working for the company once the broke the protocol Principal Company that hired the o Independent Contractor independent contractor is generally not liable for torts by independent contractors They idea being that they are own their own performing the task then they are liable Exceptions Inherently dangerous activities Just because you hire an independent contractor to perform an extremely dangerous activity you are still on the hook as the employer Negligently hired independent contractor You hire someone to do something for you who was not qualified to do the task then you are on the hook for any tort that the independent contractor performs o Contract Liability Depends on i type of authority and ii level of disclosure Contractual liability is based on the concept of agency Agency A consensual relationship under which one person the agent acts on another s the principal behalf and subject to his her control There is a conception idea on both sides If you agree to represent them and they want you to represent them then this creates an agency agreement Almost ALL employees are considered agents o In you are an janitor hired by the company then you have the permission to do certain things to do your job Like you can buy cleaning supplies but you can not buy computers on behalf of the company Levels of Authority o Types of Authority Actual Authority Principal expressly instructs an agent to act on his behalf The employee gives you full authority to make executive decision on behalf on the company EX Car Dealership Implied Authority Agency inferred from the acts of an agent who holds a position of authority Ex you are an manager on a restaurant then you have the implied authority that Apparent Authority Agency arises through principal leading others to believe that he has an agent EX You own a hotel and you know that for the past week a person has dressed up and stand and act like a valet If you know that this is happening and allow them to keep doing it You are allowing others to believe that this employee is working for you then you have given them apparent authority Better EX If you worked for me as for the past 10 years and then I fire you I have to notify all clients you worked with that you no longer work for me If you still act as my employee and I don t let the client know they wont know better Then I have given you apparent authority Agency by Ratification When a principal voluntarily decides to honor an agreement