Master and Servant

An archaic generic legal phrase that is used to describe the relationship arising between an employer and an employee.

A servant is anyone who works for another individual, the master, with or without pay. The master and servant relationship only arises when the tasks are performed by the servant under the direction and control of the master and are subject to the master's knowledge and consent.

A servant is unlike an agent, since the servant has no authority to act in his or her employer's place. A servant is also distinguishable from an INDEPENDENT CONTRACTOR, who is an individual entering into an agreement to perform a particular job through the exercise of his or her own methods and is not subject to the control of the individual by whom he or she was hired.

The master and servant relationship arises out of an express contract; the law, however, will sometimes imply a contract when none exists if a person was led to believe there was one by the conduct of both the employer and the employee. No contract exists, however, unless both master and servant consent to it. The contract can contain whatever terms and conditions the parties agree to, provided they are legal. It is essential that the terms be sufficiently definite so as to be enforceable by a court in the event that the contract is breached. An employment contract is legally enforceable by the award of damages against either party who breaks it. No employment contract, however, can be enforced by compelling the employee to work, since that would constitute INVOLUNTARY SERVITUDE, which is proscribed by the U.S. Constitution.

Federal and state laws regulate certain conditions of employment, such as minimum wages, maximum hours, overtime pay, time off for religious observances, and the safety of the work environment. Statutes ordinarily restrict employment of children, and federal CIVIL RIGHTS laws prohibit employment discrimination based upon race, color, religion, sex, or national origin. Employment agencies are generally licensed and regulated, due to the risk that dishonest agencies might come into existence.