Vicarious Liability

Brien Roche

The concepts of vicarious liability and scope of employment are related.  However they are not identical.  If one is within the scope of employment then there will be vicarious liability.  Vicarious liability however does not always involve scope of employment issues. Vicarious liability is different than direct corporate liability.

Vicarious Liability Analysis: Two Steps

The analysis is two steps. First, is the person an employee or independent contractor. In most cases that revolves around the issue of how much control the principal exercises. If the person is a contractor then in most cases there is no vicarious liability. Secondly is the question of scope of employment. If the person is an employee then was she acting with the scope.

Vicarious Liability Analysis: Control

In the case of Hesse v. Long & Foster Real Estate, Inc., 2007 W.L. 4562818, the Eastern District of Virginia dealt with the issue of whether or not a real estate agent was an employee for whom the broker could be held liable.  The court noted that the power to control is critical. It must relate to means and method of the work and not just the results of that work.  As a result the court found that Long & Foster did not exercise control over the means and methods. Call, or contact us for a free consult.

Specific Criteria for Independent Contractor

What is critical in the analysis is whether the right to control exists.  That right may not be exercised.  However the existence of the right is critical.  Also specific criteria to look at are:

• Is the work being performed part of the employer’s business?
• Is the employer responsible only for the result?
• What are the terms of the agreement between the parties?
• What is the level of skill required to perform the work?
• Who supplies the tools and the equipment?
• Does the employer have the right to terminate?
• Is he paid by the hour or by the job?
• If it’s a driving job, is the driver directed to take specific routes?
• Is the driver given an application to use in order to determine the route?
• Is there a contract between the employer and the customer that identifies who is doing the work, what their status is and how they are paid?
• Who has responsibility for background checks, drug testing and checking licenses?

Unemployment Compensation

In Amazon Logistics, Inc. v. Virginia Employment Commission, WL 6217816 (2023), the Virginia Court of Appeals affirmed a decision from the trial court which in turn had affirmed the Virginia Employment Commission. The ruling was that a Flex Amazon driver was an employee for unemployment benefits. The court looked at 20 different factors to make that determination. In these types of cases, the burden is on the employer to prove that the person is not an employee. That is different than in your typical civil case.

Vicarious Liability Analysis: Scope

The Restatement Third, Agency, page 198 states that an employee acts within the scope of employment when performing work assigned by the employer or while subject to the employer’s control.  The general factors that are considered in that regard are:

• The extent to which the employee was motivated by a desire to serve the employer.
• Was the employee on duty?
• Did the event occur on the employer’s premises or on premises where the employee’s duty would normally cause him to be?
• The extent to which the conduct was causally-related to the employment.

However if there is doubt as to whether a person is within the scope of their authority, that doubt will be resolved against the master in most cases because the master is the one who set the servant in motion.  Crowell v. Duncan, 145 Va. 489, 501 (1926).

Vicarious Liability Analysis: Pleading

In A.H. v. Church of God in Christ, Inc., 297 Va. 604, 633 (2019), the Supreme Court addressed the adequacy of a complaint for purposes of demurrer.  There was an allegation that a church employee had sexually abused a child.  The abuse occurred during the course of his performing duties that were within the scope of his employment. Also at all times he was acting as an employee of the church.  Those allegations were sufficient to survive a demurrer.

However the Supreme Court  seems to have backed away from some of the prior cases. They indicate that as long as the employment furnished the occasion for the employees’ misconduct, then there is a basis for holding the employer liable.  In Parker v. Carilion Clinic, 296 Va. 319 (2018), the court summarized prior holdings. In addition it said that an act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer. Call, or contact us for a free consult.

Giant of Maryland

In Giant of Maryland, Inc. v. Enger, 257 Va. 513, 516, 515 S.E.2d 111 (1999), the Court noted two elements. The acts must have been performed within the scope of the duties of the employment. Also they must have been in the execution of the service for which the employee was hired.  Merely showing that the employee was on the clock, using the employer’s property or on the employer’s premises is not enough.  That appears to be a change from prior decisions where the intentional conduct of a defendant was found to be within the scope of the employment because the employer created the opportunity for the misconduct.

Going and Coming

The case of Garver v. Holbrook, (2021) WL2689841, analyzes the going and coming rule.  The rule is that an injury that happens while an employee is going or coming to work does not ordinarily create liability for the employer.  There are exceptions to that.

1. The employer reimburses the employee for travel time.
2. The employer pays or provides the means of transport.
3. Ingress or egress is the sole access or the employer built it.
4. The employee is charged with some duty or task connected with the employment while going to or from.

In this case the motorist is alleged to have used a cell phone to communicate with the employer.  However that did not qualify as one of the exceptions.

U.S. Department of Labor

On January 9, 2024, the U.S. Department of Labor issued some new rules as to who is an independent contractor. They apply a six-factor test:

1. The control that the employer exercises over how the work is done.
2. The worker’s opportunity for profit or loss.
3. The amount of skill and initiative required.
4. The permanence of the working relationship. The more permanent it is, the more likely it is to be an employment relationship.
5. The worker’s investment in equipment and materials that are required.
6. The extent to which the work is an integral part of the employer’s business.

Although exclusivity is a consideration under the permanency factor, the rule acknowledges that simply having multiple jobs does not necessarily weigh in favor of the independent contractor status.

Virginia has applied its own rule which is found at Virginia Code § 40.1-28.7:7 which creates a presumption that the worker is an employee unless the employer can show the IRS Guidelines dictate otherwise. The IRS regulations include those found at 26 CFR 31.3121(d)-1.

Call, or contact us for a free consult. In addition see the page on apparent agency . Also for more info on this issue see the Wikipedia pages. Also see the post on this site dealing with injury issues.