Participation as a Theory of Employment

B. Defining "Scope of Employment" Unlike the competing definitions for the term "employee," the term "scope of employment" has not been the subject of various theoretical approaches. The term is not generally used in labor and employment statutes, as in most cases the nature of the rights provided to employees guarantees that those rights concern activities within the scope of employment. (168) The one primary exception is workers' compensation, which only provides protections against injuries incurred within the scope of employment. (169) Outside of labor and employment law, employers are only liable for the torts and crimes of their employees in such actions as are taken within the scope of employment. (170) And intellectual property protections generally only apply to works made within the scope of employment. (171) Scope of employment is defined as that zone of conduct in which the employee is performing her job duties. (172) Efforts to define employees' duties as excluding all torts, statutory violations, or criminal activity have generally been unavailing. (173) Under the doctrine of respondeat superior, if the employee is on the job or within a zone of activity related to the employment duties, the employer will generally be liable for the employee's tort, regardless of the employer's efforts to define such conduct as outside of the employee's duties or authority. Instead, courts have adopted something along the lines of a foreseeability test, in which the employer is liable if the employee's actions are in some way foreseeable. In two famous cases involving drunken sailors, both Judge Hand and Judge Friendly found employers liable for acts of violence to person and property taken by intoxicated employees. (174) In both cases, however, the courts found that the actions were taken within the sailors' overall context of employment and that therefore the employer was liable. (175) Moreover, an employer may be liable for employee actions taken outside of the scope of employment if the master retains some level of responsibility (through intent, recklessness, or non-delegable duty) or if the employee was aided in some way by apparent authority or the agency relationship itself. (176) Given "the proclivity of seamen to find solace for solitude by copious resort to the bottle while ashore," their acts of violence--while regrettable and unauthorized--were sufficiently foreseeable to be part of the costs of doing such business. (177) As a result, "scope of employment" categorization questions have usually concerned not whether the particular employee is following the script of her particular contractual relationship with the employer, but rather whether the activity is part and parcel of the overall employment relationship. (178) The employer is expected to absorb the costs of doing business as a firm, which includes a certain level of employee activity that may not directly inure to the employer's benefit. As the Restatement (Second) of Agency put it, the "ultimate question" in determining the scope of employment is "whether or not it is just that the loss resulting from the servant's acts should be considered as one of the normal risks to be borne by the business in which the servant is employed." (179) Or, as then-Judge Cardozo put it, The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master's business. Many things that have no such tendency are done by workmen every day.... The test of liability is the relation of the service to the injury, of the employment to the risk. (180) III. EMPLOYEES AND THE THEORY OF THE FIRM Although we think of employees as defined by their work or labor, the legal definitions of "employee" have much more to do with the relationship between the individual worker and the person or entity for whom she works. …