Relationships between Principal and Agent
Read this chapter to learn about the types of agents and their relationship to their principals.
Duties between Agent and Principal
Learning Objectives
- Understand that the agent owes the principal two types of duties: a special duty - the fiduciary duty - and other general duties as recognized in agency law.
- Recognize that the principal owes the agent duties: contract, tort, and workers' compensation.
Agent's Duty to Principal
The agent owes the principal duties in two categories: the fiduciary duty and a set of general duties imposed by agency law. But these general duties are not unique to agency law; they are duties owed by any employee to the employer.
Fiduciary Duty
In a nonagency
contractual situation, the parties' responsibilities terminate at the
border of the contract. There is no relationship beyond the agreement.
This literalist approach is justified by the more general principle that
we each should be free to act unless we commit ourselves to a
particular course.
But the agency relationship is more than a
contractual one, and the agent's responsibilities go beyond the border
of the contract. Agency imposes a higher duty than simply to abide by
the contract terms. It imposes a fiduciary duty. The law infiltrates the
contract creating the agency relationship and reverses the general
principle that the parties are free to act in the absence of agreement.
As a fiduciary of the principal, the agent stands in a position of
special trust. His responsibility is to subordinate his self-interest to
that of his principal. The fiduciary responsibility is imposed by law.
The absence of any clause in the contract detailing the agent's
fiduciary duty does not relieve him of it. The duty contains several
aspects.
Duty to Avoid Self-Dealing
A fiduciary may not lawfully profit from a conflict between his personal interest in a transaction and his principal's interest in that same transaction. A broker hired as a purchasing agent, for instance, may not sell to his principal through a company in which he or his family has a financial interest. The penalty for breach of fiduciary duty is loss of compensation and profit and possible damages for breach of trust.
Duty to Preserve Confidential Information
To further his objectives, a principal will usually need to reveal a number of secrets to his agent - how much he is willing to sell or pay for property, marketing strategies, and the like. Such information could easily be turned to the disadvantage of the principal if the agent were to compete with the principal or were to sell the information to those who do. The law therefore prohibits an agent from using for his own purposes or in ways that would injure the interests of the principal, information confidentially given or acquired. This prohibition extends to information gleaned from the principal though unrelated to the agent's assignment: "[A]n agent who is told by the principal of his plans, or who secretly examines books or memoranda of the employer, is not privileged to use such information at his principal's expense". Nor may the agent use confidential information after resigning his agency. Though he is free, in the absence of contract, to compete with his former principal, he may not use information learned in the course of his agency, such as trade secrets and customer lists. Section 38.3.3 "Breach of Fiduciary Duty", Bacon v. Volvo Service Center, Inc., deals with an agent's breach of the duty of confidentiality.
Other Duties
In addition to fiduciary responsibility (and whatever special duties may be contained in the specific contract) the law of agency imposes other duties on an agent. These duties are not necessarily unique to agents: a nonfiduciary employee could also be bound to these duties on the right facts.
Duty of Skill and Care
An agent is usually taken on because he has special knowledge or skills that the principal wishes to tap. The agent is under a legal duty to perform his work with the care and skill that is "standard in the locality for the kind of work which he is employed to perform" and to exercise any special skills, if these are greater or more refined than those prevalent among those normally employed in the community. In short, the agent may not lawfully do a sloppy job.
Duty of Good Conduct
In the absence of an agreement, a principal may not ordinarily dictate how an agent must live his private life. An overly fastidious florist may not instruct her truck driver to steer clear of the local bar on his way home from delivering flowers at the end of the day. But there are some jobs on which the personal habits of the agent may have an effect. The agent is not at liberty to act with impropriety or notoriety, so as to bring disrepute on the business in which the principal is engaged. A lecturer at an antialcohol clinic may be directed to refrain from frequenting bars. A bank cashier who becomes known as a gambler may be fired.
Duty to Keep and Render Accounts
The agent must keep accurate financial records, take receipts, and otherwise act in conformity to standard business practices.
Duty to Act Only as Authorized
This duty states a truism but is one for which there are limits. A principal's wishes may have been stated ambiguously or may be broad enough to confer discretion on the agent. As long as the agent acts reasonably under the circumstances, he will not be liable for damages later if the principal ultimately repudiates what the agent has done: "Only conduct which is contrary to the principal's manifestations to him, interpreted in light of what he has reason to know at the time when he acts,…subjects the agent to liability to the principal".
Duty Not to Attempt the Impossible or Impracticable
The principal says to the agent, "Keep working until the job is done". The agent is not obligated to go without food or sleep because the principal misapprehended how long it would take to complete the job. Nor should the agent continue to expend the principal's funds in a quixotic attempt to gain business, sign up customers, or produce inventory when it is reasonably clear that such efforts would be in vain.
Duty to Obey
As a general rule, the agent must obey reasonable directions concerning the manner of performance. What is reasonable depends on the customs of the industry or trade, prior dealings between agent and principal, and the nature of the agreement creating the agency. A principal may prescribe uniforms for various classes of employees, for instance, and a manufacturing company may tell its sales force what sales pitch to use on customers. On the other hand, certain tasks entrusted to agents are not subject to the principal's control; for example, a lawyer may refuse to permit a client to dictate courtroom tactics.
Duty to Give Information
Because the principal cannot be every place at once - that is why agents are hired, after all - much that is vital to the principal's business first comes to the attention of agents. If the agent has actual notice or reason to know of information that is relevant to matters entrusted to him, he has a duty to inform the principal. This duty is especially critical because information in the hands of an agent is, under most circumstances, imputed to the principal, whose legal liabilities to third persons may hinge on receiving information in timely fashion. Service of process, for example, requires a defendant to answer within a certain number of days; an agent's failure to communicate to the principal that a summons has been served may bar the principal's right to defend a lawsuit. The imputation to the principal of knowledge possessed by the agent is strict: even where the agent is acting adversely to the principal's interests - for example, by trying to defraud his employer - a third party may still rely on notification to the agent, unless the third party knows the agent is acting adversely.
"Shop Rights" Doctrine
In
Grip Nut Co. v. Sharp, Sharp made a deal with Grip Nut Company that in
return for a salary and bonuses as company president, he would assign to
the company any inventions he made. When the five-year employment contract expired, Sharp
continued to serve as chief executive officer, but no new contract was
negotiated concerning either pay or rights to inventions. During the
next ten years, Sharp invented a number of new products and developed
new machinery to manufacture them; patent rights went to the company.
However, he made one invention with two other employees and they
assigned the patent to him. A third employee invented a safety device
and also assigned the patent to Sharp. At one time, Sharp's son invented
a leakproof bolt and a process to manufacture it; these, too, were
assigned to Sharp. These inventions were developed in the company's
plants at its expense.
When Sharp died, his family claimed the
rights to the inventions on which Sharp held assignments and sued the
company, which used the inventions, for patent infringement. The family
reasoned that after the expiration of the employment contract, Sharp was
employed only in a managerial capacity, not as an inventor. The court
disagreed and invoked the shop rights doctrine, under which an invention
"developed and perfected in [a company's] plant with its time,
materials, and appliances, and wholly at its expense" may be used by the
company without payment of royalties: "Because the servant uses his
master's time, facilities and materials to attain a concrete result, the
employer is entitled to use that which embodies his own property and to
duplicate it as often as he may find occasion to employ similar
appliances in his business". The company would have been given complete
ownership of the patents had there been an express or implied (e.g., the
employee is hired to make inventions) contract to this effect between
Sharp and the company.
Principal's Duty to Agent
In this category, we may note that the principal owes the agent duties in contract, tort, and - statutorily - workers' compensation law.
Contract Duties
The fiduciary relationship of agent to principal does not run in reverse - that is, the principal is not the agent's fiduciary. Nevertheless, the principal has a number of contractually related obligations toward his agent.
General Contract Duties
These duties are analogues of many of the agent's duties that we have just examined. In brief, a principal has a duty "to refrain from unreasonably interfering with [an agent's] work". The principal is allowed, however, to compete with the agent unless the agreement specifically prohibits it. The principal has a duty to inform his agent of risks of physical harm or pecuniary loss that inhere in the agent's performance of assigned tasks. Failure to warn an agent that travel in a particular neighborhood required by the job may be dangerous (a fact unknown to the agent but known to the principal) could under common law subject the principal to a suit for damages if the agent is injured while in the neighborhood performing her job. A principal is obliged to render accounts of monies due to agents; a principal's obligation to do so depends on a variety of factors, including the degree of independence of the agent, the method of compensation, and the customs of the particular business. An agent's reputation is no less valuable than a principal's, and so an agent is under no obligation to continue working for one who sullies it.
Employment at Will
Under
the traditional "employment-at-will" doctrine, an employee who is not
hired for a specific period can be fired at any time, for any reason
(except bad reasons: an employee cannot be fired, for example, for
reporting that his employer's paper mill is illegally polluting
groundwater).
Duty to Indemnify
Agents commonly spend money pursuing the principal's business. Unless the agreement explicitly provides otherwise, the principal has a duty to indemnify or reimburse the agent. A familiar form of indemnity is the employee expense account.
Tort and Workers' Compensation Duties
The employer owes the employee - any employee, not just agents - certain statutorily imposed tort and workers' compensation duties.
Background to Workers' Compensation
Andy,
who works in a dynamite factory, negligently stores dynamite in the
wrong shed. Andy warns his fellow employee Bill that he has done so.
Bill lights up a cigarette near the shed anyway, a spark lands on the
ground, the dynamite explodes, and Bill is injured. May Bill sue his
employer to recover damages? At common law, the answer would be no -
three times no. First, the "fellow-servant" rule would bar recovery
because the employer was held not to be responsible for torts committed
by one employee against another. Second, Bill's failure to heed Andy's
warning and his decision to smoke near the dynamite amounted to
contributory negligence. Hence even if the dynamite had been negligently
stored by the employer rather than by a fellow employee, the claim
would have been dismissed. Third, the courts might have held that Bill
had "assumed the risk": since he was aware of the dangers, it would not
be fair to saddle the employer with the burden of Bill's actions.
The
three common-law rules just mentioned ignited intense public fury by
the turn of the twentieth century. In large numbers of cases, workers
who were mutilated or killed on the job found themselves and their
families without recompense. Union pressure and grass roots lobbying led
to workers' compensation acts - statutory enactments that dramatically
overhauled the law of torts as it affected employees.
The System in General
Workers'
compensation is a no-fault system. The employee gives up the right to
sue the employer (and, in some states, other employees) and receives in
exchange predetermined compensation for a job-related injury, regardless
of who caused it. This trade-off was felt to be equitable to employer
and employee: the employee loses the right to seek damages for pain and
suffering - which can be a sizable portion of any jury award - but in
return he can avoid the time-consuming and uncertain judicial process
and assure himself that his medical costs and a portion of his salary
will be paid - and paid promptly. The employer must pay for all
injuries, even those for which he is blameless, but in return he avoids
the risk of losing a big lawsuit, can calculate his costs actuarially,
and can spread the risks through insurance.
Most workers'
compensation acts provide 100 percent of the cost of a worker's
hospitalization and medical care necessary to cure the injury and
relieve him from its effects. They also provide for payment of lost
wages and death benefits. Even an employee who is able to work may be
eligible to receive compensation for specific injuries. Part of the
table of benefits for specific injuries under the Kansas statute is
shown in Note 38.16 "Kansas Workers' Compensation Benefits for Specific
Injuries".
Kansas Workers' Compensation Benefits for Specific Injuries
Article 5. - Workers' Compensation
44-510d.
Compensation for certain permanent partial disabilities; schedule. If
there is an award of permanent disability as a result of the injury
there shall be a presumption that disability existed immediately after
the injury and compensation is to be paid for not to exceed the number
of weeks allowed in the following schedule:
(1) For loss of a thumb, 60 weeks.
(2) For the loss of a first finger, commonly called the index finger, 37 weeks.
(3) For the loss of a second finger, 30 weeks.
(4) For the loss of a third finger, 20 weeks.
(5) For the loss of a fourth finger, commonly called the little finger, 15 weeks.
(6)
Loss of the first phalange of the thumb or of any finger shall be
considered to be equal to the loss of 1/2 of such thumb or finger, and
the compensation shall be 1/2 of the amount specified above. The loss of
the first phalange and any part of the second phalange of any finger,
which includes the loss of any part of the bone of such second phalange,
shall be considered to be equal to the loss of 2/3 of such finger and
the compensation shall be 2/3 of the amount specified above. The loss of
the first phalange and any part of the second phalange of a thumb which
includes the loss of any part of the bone of such second phalange,
shall be considered to be equal to the loss of the entire thumb. The
loss of the first and second phalanges and any part of the third
proximal phalange of any finger, shall be considered as the loss of the
entire finger. Amputation through the joint shall be considered a loss
to the next higher schedule.
(7) For the loss of a great toe, 30 weeks.
(8) For the loss of any toe other than the great toe, 10 weeks.
(9)
The loss of the first phalange of any toe shall be considered to be
equal to the loss of 1/2 of such toe and the compensation shall be 1/2
of the amount above specified.
(10) The loss of more than one phalange of a toe shall be considered to be equal to the loss of the entire toe.
(11) For the loss of a hand, 150 weeks.
(12) For the loss of a forearm, 200 weeks.
(13)
For the loss of an arm, excluding the shoulder joint, shoulder girdle,
shoulder musculature or any other shoulder structures, 210 weeks, and
for the loss of an arm, including the shoulder joint, shoulder girdle,
shoulder musculature or any other shoulder structures, 225 weeks.
(14) For the loss of a foot, 125 weeks.
(15) For the loss of a lower leg, 190 weeks.
(16) For the loss of a leg, 200 weeks.
(17) For the loss of an eye, or the complete loss of the sight thereof, 120 weeks.
The
injured worker is typically entitled to two-thirds his or her average
pay, not to exceed some specified maximum, for two hundred weeks. If the
loss is partial (like partial loss of sight), the recovery is decreased
by the percentage still usable.
Coverage
Although workers'
compensation laws are on the books of every state, in two states - New
Jersey and Texas - they are not compulsory. In those states the employer
may decline to participate, in which event the employee must seek
redress in court. But in those states permitting an employer election,
the old common-law defenses (fellow-servant rule, contributory
negligence, and assumption of risk) have been statutorily eliminated,
greatly enhancing an employee's chances of winning a suit. The incentive
is therefore strong for employers to elect workers' compensation
coverage.
Those frequently excluded are farm and domestic
laborers and public employees; public employees, federal workers, and
railroad and shipboard workers are covered under different but similar
laws. The trend has been to include more and more classes of workers.
Approximately half the states now provide coverage for household
workers, although the threshold of coverage varies widely from state to
state. Some use an earnings test; other states impose an hours
threshold. People who fall within the domestic category include maids,
baby-sitters, gardeners, and handymen but generally not plumbers,
electricians, and other independent contractors.
Paying for Workers' Compensation
There
are three general methods by which employers may comply with workers'
compensation laws. First, they may purchase employer's liability and
workers' compensation policies through private commercial insurance
companies. These policies consist of two major provisions: payment by
the insurer of all claims filed under workers' compensation and related
laws (such as occupational disease benefits) and coverage of the costs
of defending any suits filed against the employer, including any
judgments awarded. Since workers' compensation statutes cut off the
employee's right to sue, how can such a lawsuit be filed? The answer is
that there are certain exceptions to the ban: for instance, a worker may
sue if the employer deliberately injures an employee.
The second
method of compliance with workers' compensation laws is to insure
through a state fund established for the purpose. The third method is to
self-insure. The laws specify conditions under which companies may
resort to self-insurance, and generally only the largest corporations
qualify to do so. In short, workers' compensation systems create a tax
on employers with which they are required (again, in most states) to buy
insurance. The amount the employer has to pay for the insurance depends
on the number and seriousness of claims made - how dangerous the work
is. For example, Washington State's 2011 proposed hourly rates for
employers to purchase insurance include these items: for egg and poultry
farms, $1.16 per hour; shake and shingle mills, $18.06 per hour;
asphalt paving, $2.87 per hour; lawn care maintenance, $1.22 per hour;
plastic products manufacturing, $0.87 per hour; freight handling, $1.81
per hour; supermarkets, $0.76; restaurants, $0.43; entertainers and
dancers, $7.06; colleges and universities, $0.31.
Recurring Legal Issues
There
are a number of legal issues that recur in workers' compensation cases.
The problem is, from the employer's point of view, that the cost of
buying insurance is tied to the number of claims made. The employer
therefore has reason to assert the injured employee is not eligible for
compensation. Recurring legal issues include the following:
- Is the injury work related? As a general rule, on-the-job injuries are covered no matter what their relationship to the employee's specific duties. Although injuries resulting from drunkenness or fighting are not generally covered, there are circumstances under which they will be, as Section 38.3.2 "Employee versus Independent Contractor" shows.
- Is the injured person an employee? Courts are apt to be liberal in construing statutes to include those who might not seem to be employed. In Betts v. Ann Arbor Public Schools, a University of Michigan student majoring in physical education was a student teacher in a junior high school. During a four-month period, he taught two physical education courses. On the last day of his student teaching, he walked into the locker room and thirty of his students grabbed him and tossed him into the swimming pool. This was traditional, but he "didn't feel like going in that morning" and put up a struggle that ended with a whistle on an elastic band hitting him in the eye, which he subsequently lost as a result of the injury. He filed a workers' compensation claim. The school board argued that he could not be classified as an employee because he received no pay. Since he was injured by students - not considered agents of the school - he would probably have been unsuccessful in filing a tort suit; hence the workers' compensation claim was his only chance of recompense. The state workers' compensation appeal board ruled against the school on the ground that payment in money was not required: "Plaintiff was paid in the form of training, college credits towards graduation, and meeting of the prerequisites of a state provisional certificate". The state supreme court affirmed the award.
- How palpable must the "injury" be? A difficult issue is whether a worker is entitled to compensation for psychological injury, including cumulative trauma. Until the 1970s, insurance companies and compensation boards required physical injury before making an award. Claims that job stresses led to nervous breakdowns or other mental disorders were rejected. But most courts have liberalized the definition of injury and now recognize that psychological trauma can be real and that job stress can bring it on, as shown by the discussion of Wolfe v. Sibley, Lindsay & Curr Co. in Section 38.
Key Takeaway
The agent owes the
principal two categories of duties: fiduciary and general. The fiduciary
duty is the duty to act always in the interest of the principal; the
duty here includes that to avoid self-dealing and to preserve
confidential information. The general duty owed by the agent encompasses
the sorts of obligations any employee might have: the duty of skill and
care, of good conduct, to keep and render accounts, to not attempt the
impossible or impracticable, to obey, and to give information. The shop
rights doctrine provides that inventions made by an employee using the
employer's resources and on the employer's time belong to the employer.
The
principal owes the agent duties too. These may be categorized as
contract and tort duties. The contract duties are to warn the agent of
hazards associated with the job, to avoid interfering with the agent's
performance of his job, to render accounts of money due the agent, and
to indemnify the agent for business expenses according to their
agreement. The tort duty owed by the principal to the agent - employee -
is primarily the statutorily imposed duty to provide workers'
compensation for injuries sustained on the job. In reaction to
common-law defenses that often exonerated the employer from liability
for workers' injuries, the early twentieth century saw the rise of
workers' compensation statutes. These require the employer to provide
no-fault insurance coverage for any injury sustained by the employee on
the job. Because the employer's insurance costs are claims rated (i.e.,
the cost of insurance depends on how many claims are made), the employer
scrutinizes claims. A number of recurring legal issues arise: Is the
injury work related? Is the injured person an employee? What constitutes
an "injury"?
Exercises
- Judge Learned Hand, a famous
early-twentieth-century jurist (1872–1961), said, "The fiduciary duty is
not the ordinary morals of the marketplace". How does the fiduciary
duty differ from "the ordinary morals of the marketplace"? Why does the
law impose a fiduciary duty on the agent?
- What are the nonfiduciary duties owed by the agent to the principal?
- What contract duties are owed by the principal to the agent?
- Why were workers' compensation statutes adopted in the early twentieth century?
- How do workers' compensation statutes operate, and how are the costs paid for?