EMPLOYER AND EMPLOYEE

I.     OVERVIEW OF COMMON LAW.

The term employee refers to a person who is hired by a contract of service to perform certain duties for another person, called the employer.

A.     TERMS.

In common law there are two types of general employment contracts: (a) contracts to do some particular thing such as to buy and sell stocks or provisions, or collect accounts, and (b) contracts to do whatever the employer instructs. Such contracts are frequently verbal, or even only implied, rather than written.

If no agreement has been made beforehand, the employee is entitled to the wages usually paid for such service. If the employee leaves because of insufficient food, ill treatment, or disabling sickness, he or she is entitled to payment for the time worked.

B.     DUTIES OF EMPLOYEE.

The employee is expected to perform faithfully the services for which he or she contracted for the entire term or period of service. In many cases, as in those of workers employed by the day or hour, this period of service may be very short. Courts frequently hold that if an employee leaves before expiration time, he or she cannot claim pay for the work done. Some judges have held, however, that even in this case the employee is entitled to pay for work done "quantum meruit," less what the employer lost by necessity of paying higher wages to the employee's successor, or what amount lost by the employee's failing to perform his contract. The employee is bound to take reasonable care of the property in his or her care, and is liable for any loss or injury to it when due to his or her negligence.

C.     DISCHARGE.

The traditional rule was that an employee may be discharged at the end of the agreed term of the contract without any cause or previous notice. If discharged without good cause before the termination of the agreement, however, the employee is entitled to pay for the whole period, provided he has first made an earnest attempt to secure other employment in the same kind of work. If he or she gets work at lower wages, he or she is entitled to the difference. If his pay is equal to, or higher than, the former rate, he or she cannot collect. If, however, the discharge is on account of incapacity, dishonesty, or misconduct, he is or she is not entitled to any pay for the unexpired period. Frequently a person is hired for a month, or for a year, at the termination of which the work continues. In such cases the law presumes a new contract on the same terms.

D.     LIABILITY OF EMPLOYER.

An employer's liability is of two kinds: (a) liability for the acts of his employees, and (b) liability for the injury or death of his employees.

1.     LIABILITY FOR ACTS OF EMPLOYEE.

The employer is liable for the wrongful acts of the employee producing injury to others, provided the acts are done in the course of the ordinary employment. Thus a railroad company is liable to passengers for negligence of conductors and engineers.

2.     LIABILITY FOR INJURY TO EMPLOYEES.

Workers compensation acts have largely provided new remedies to take the place of the employee's right to sue the employer for injuries incurred in the course of employment. Under these acts liability is generally imposed upon the employer without regard to the question as to whether or not the employer was at fault, and payments are made as insurance rather than as damages.