Author:Harper, Michael C.


The common law remains an intellectual battle ground in Anglo-American legal systems, even in the current age of statutes. This is true in significant part because the common law provides legitimacy for arguments actually based on policy, ideology, and interest. It also is true because of the common law's malleability and related susceptibility to significantly varied interpretations.

Mere contention over the meaning of the common law to provide legitimacy for modern statutes is usually not productive of sensible policy, however. It generally produces no more than reified doctrine unsuited for problems the common law was not framed to solve. Yet, when viewed more flexibly, not to find doctrinal rules, but rather to find insight from judges' collective judgment on social values, examining the common law may have a different kind of value for modern policy makers.

Both the misuse and the value of the common law are illustrated by the attempts to define when workers are to be protected and benefitted by employment statutes in both the United States (U.S.) and the United Kingdom (U.K.), nations that proudly share a common law tradition. (1) The misuse is evident as the courts of each nation have looked to the common law to provide legitimacy for formulaic definitions that serve to set presumptive boundaries on those protected by their employment statutes. The courts of each have struggled both to make those boundaries clear and predictable, and also to provide a compelling and coherent rationale for the boundaries they have traced by common law formulas. American law has been burdened by multifactor tests that do not explicitly focus on some ultimate standard or principle, such as the need of workers for coverage by employment statutes. (2) U.K. law has compounded this burden by doctrine derived from the common law of contracts without explaining a rationale related to the purposes of its employment laws, including the needs of its workers. (3)

The result has been a halting and uncertain judicial response to the challenge of defining the employment relationship in the shadow of two major developments in the modern workplace. The first is its vertical disintegration or Assuring, as the use of staffing agencies, subcontracting, and franchising, continues to proliferate. The second has been the emergence of a workforce who accepts work from digital platforms without a traditional contract of employment.

Yet, judicial and legislative policy makers in each nation could be set on a much more promising path by setting a default presumption of coverage based on an underlying rationale relevant to the initial distinction between employees and independent contractors - the common law of vicarious liability through respondeat superior. (4) This rationale is based on the appropriateness of cost internalization where there is an alignment of worker duties with employer interests. It presents a socially compelling reason for assigning responsibility for workers' benefits and protections to an employing entity, or entities, with aligned interests, rather than to the workers or to the general society. (5)

While statutory protections and benefits should be based on worker need, the alignment of worker duties with employer interests provides a critical principle of economic fairness for assigning responsibility for the protections and benefits. Where workers do not have sufficient control over economic resources to work in their own independent interests, rather than in line with those of some employer or employers, they are in a position of greater need than those workers who do have such control. Furthermore, in the absence of such resource control, their duties will be aligned with the interests of employers that presumptively should be responsible for the protections and benefits offered by modern employment statutes.

This essay will explain how the common law of respondeat superior is based on a principle that also can determine the assignment of responsibility for benefits and protections set in modern employment statutes. (6) In its first section, the essay briefly recounts the unfocused use of multifactor tests in the U.S. to set unclear and unconvincing default rules for the coverage of American employment statutes. (7) In its second section, the essay also briefly describes how U.K. courts not only have failed to provide a more convincing default rule, but also have encumbered British law with unnecessary doctrine drawn from the common law of contracts. (8)

The essay, in its third section, then explains how the common law of respondeat superior offers a principled basis for deciding both when, and to which employing entities, responsibility for the protections and benefits of modern laws should be assigned. (9) The fourth section then elaborates how the principled basis for employer responsibility derived from respondeat superior law can be embraced by American courts, and British policy makers, (10) by adopting the distinction between employees and independent contractors articulated in the recently published Restatement of Employment Law. (11)

The remainder of the essay then elaborates how the principle, as expressed in the Restatement of Employment Law, would apply to some difficult questions in the modern economy. The fifth section considers how the principle meets the challenges posed by employers shifting the risks of economic activity on to vulnerable workers, including those in the new digital "gig" economy, whose duties remain aligned with the interests of the employers and whose need of protection and benefits remains as great as those of more traditional workers. (12) The sixth section addresses assigning responsibility for certain workers' statutory benefits and protections to multiple "fissured" employers whose interests are served by the workers. (13) Finally, the seventh section considers several reasons that policy makers might wish to depart from the default rule derived from respondeat superior. (14)


    Most federal American employment or labor statutes define coverage through a meaningless and typically circular definition of the employment relationship. For instance, many limit protection to those described as an "employee" and then define employee to be "any individual employed by an employer." (15) As a result, the U.S. Supreme Court for at least the past forty years has invoked the common law to provide legitimacy for its opinions concerning the scope of federal employment statutes that offer protection to employees but not to independent contractors. (16) Earlier it had tried to use a more flexible approach, taking into account the purpose of a particular law, such as the National Labor Relations Act (NLRA) (17) governing collective bargaining, (18) but had been chastised by Congress for departing from the common law as a default definition for covered employees. (19)

    The Supreme Court's more recent invocation of the common law may have provided some legitimacy, but it certainly has not provided clarity. The reason for this lack of clarity in the U.S. is not simply multiple state court jurisdictions with the authority to make their own common law, or a federal court system that since 1938 has been denied the authority to make general American federal common law not tied to the interpretation of statutes. (20) It also is because the state court systems have not been able to develop a clear consensus on a definition of the employee relationship, even with the assistance of the efforts of the American Law Institute (ALI) to restate the best common law formulated in American jurisdictions. (21)

    It was not as if the ALI did not try to provide a meaningful definition, even before the recent Restatement of Employment Law. Agency law for purposes of setting the master's vicarious or respondeat superior liability for the torts of servants required a definition of servant, and the Restatements of Agency have attempted to provide one, primarily through a right-to-control test. (22) The mid-twentieth century Second Restatement of Agency, which remains the most influential, at least on this issue, defines servant as "a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control." (23) The Second Restatement of Agency recognized, however, that the decisions could not be fully captured by so simple a formulation. A "full-time cook," "ship captains," "managers of great corporations," a "traveling salesman," and "skilled artisans... with whose method of accomplishing results the so-called master has neither the knowledge nor the desire to interfere," all could be servants regardless of the attenuation of the master's control or even right to control physical conduct. (24)

    The Second Restatement of Agency thus supplemented the right-to-control test with a non-exclusive list of ten factors to determine "whether one acting for another is a servant or an independent contractor." (25) It did not, however, specify whether these factors were to be used to expand the scope of employee status beyond that indicated by the right-to-control test or rather were to be used in service to this test. The former, however, seems suggested by inclusion, as the first of the ten listed factors, of "(a) the extent of control which, by the agreement, the master may exercise over the details of the work." (26) The Restatement Second of Agency thereby presented judges with great discretion and lawyers with great uncertainty...

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