Public Health Law Map - Beta 5 - Medical and Public Health Law Site

person is paid, this is only one of several factors that are considered. Even unpaid
volunteer workers may be classified as employees for the purpose of vicarious
liability. The usual focus is on payment because most disputes about employment
status involve the tax laws rather than the tort laws. The whole work situation is
considered when determining whether there is vicarious liability for a person’s
actions.
2. Method of Payment
Persons who are paid as employees (the employer pays federal or state withholding
tax, Federal Insurance Contributors Act [FICA], insurance, and so on) will generally
be considered employees for determining vicarious liability. If the worker is a
volunteer who receives no pay but does a defined job that is usually done by paid
employees, the volunteer is also treated as an employee. If FICA should be paid but
is not because the employee and the employer are trying to evade their tax liabilities,
the court can still find the putative employer vicariously liable for the person’s
actions. In addition, the employer may have liability for tax evasion. The Internal
Revenue Service has become intolerant of paying an individual as a contract worker
to avoid employment taxes and FICA. If the worker is truly a contract worker, is a
volunteer who is not displacing a paid worker, or is paid by someone else, then
vicarious liability is determined by the extent to which the individuals control their
own work.
3. Control
The fundamental issue that determines whether a person is legally treated as an
employee is the extent to which the person hiring the work may control the details of
the work. To illustrate this, consider the situation of hiring a licensed plumber to
install a new sink in a physician’s office. In this situation, the physician determines
what type of sink to install and where to put it, but the plumber determines how to
install the sink. If someone is injured because the sink is improperly installed, the
physician is not vicariously liable for the plumber’s work.
Conversely, assume that the physician hires an unskilled worker to install the sink.
The physician tells the worker how to cut the hole for the sink, attach the pipes, and
install the garbage disposal. In this situation, the physician would be vicariously
liable for an injury caused by the unskilled worker’s negligent installation of the sink.
There will be vicarious liability when the employer directs the details of the work or
has the responsibility for directing the details of the work.
4. Scope of Employment
An employee’s scope of employment is the activities that the employee may properly
carry out and that the employer is expected to supervise. Determining scope of
employment is important because an employee can collect workers’ compensation
benefits only for injuries that arise within the scope of employment. It is also
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