Question

Briefly discuss the four tests courts use to determine if an employee's conduct was within his or her scope of employment.

Answer 1

The Supreme Court went on to say that the three common law tests were not to be used exclusively but in conjunction with other relevant matters. With those comments in mind, this editorial moves on to look at the common law tests as used in the Employment Court’s decision.

First, employers are seen as directing the behavior of their employees and accordingly, must share in the good as well as the bad results of that behavior. By the same token that an employer is legally entitled to the rewards of an employee's labor (profit), an employer also has the legal liability if that same behavior results in harm.

Second, when someone is injured or harmed and needs to be compensated, who is the most likely to pay: the employee or the employer? Fair or not, the legal system is interested in making the victim whole, and assigning liability to the employer rather than the employee has the best chance of meeting that goal.

1   The Control Test

The control tests looks at the degree of control exercised by the “employer” (used in a generic sense) over the worker. The more control the “employer” has, the more it indicates an employment relationship. Conversely, the less control the “employer” has (and therefore the more control the worker has), the more it is indicative of an independent contract

2   The Integration Test

The integration test considers how integrated the worker is into their “employer’s” business. If a worker is part of the business in the sense that their work is an integral part of the business, it is more likely they are an employee, but if their work is only an accessory to the business, it is more likely they are a contractor.

3   The Fundamental Test

The fundamental test asks the question of “whether the contracted person has been effectively working on his or her own account. Are they self-employed, or are they working for someone else?

The tax return form he completed yearly – an IR3 – referred to the taxpayer as being self-employed

Employers, and not the employees themselves, will often be held liable for the conduct of their employees. This is true even if the employer had no intention to cause harm and played no physical role in the harm. To understand why, you have to understand two basic concepts that underlie employer liability.

4. sexual molestation

An employer is held to a higher standard of duty in the selection and continued retention of an employee where there exists a unique opportunity to commit a crime because of the employer/employee relationship. This is particularly true for public park and recreation agencies who are entrusted with the well-being of the children of the community. Particularly, where an employee is placed in a position of supervisory and/or disciplinary authority over children, an employer has a duty to properly screen the applicant. Moreover, an employer has a legal duty to continue to provide screening to determine if the applicant has been convicted of crimes involving moral turpitude. The following four factors are important in determining whether an employer can be held liable for sexual assaults committed by its employees: (1) whether tortious act (i.e. conduct causing personal injury) was primarily employment-rooted; (2) whether the violence was reasonably incidental to the performance of the employee's duties; (3) whether the act occurred on the employer's premises; and (4) whether the act occurred during the hours of employment. All four factors need not be met before liability may be found. Instead, each case will be looked at on its own merits. Specifically, courts will determine whether the employer is was liable for its employee’s criminal misconduct because it was either foreseeable or occurred within the scope of employee's authority. As illustrated by the sexual molestation cases described below, agency liability for alleged sexual molestation by its employees or agents tends to be the exception, rather than the rule.