Master and Servant

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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.

Duties of Master and Servant

The general rule is that a master may hire and fire servants; however, this is limited to a certain extent by the law. An employee cannot be discharged for a reason not permitted by his or her employment contract or the collective bargaining agreement that may govern the employment; nor can the person be fired because of race, color, religion, sex, or national origin. In addition, an employer cannot fire an employee who is exercising certain rights, such as filing a discrimination complaint with a governmental agency or filing for worker's compensation benefits.

An employee can be discharged for misappropriating funds, being unfaithful to his or her employer's interest, refusing to perform services that were agreed upon in a contract, or for being habitually late or absent. An employee cannot be fired for insubordination for refusing to subscribe to unlawful directives from his or her employer, nor can the employee be required to perform such illegal tasks as committing perjury or handling stolen property. A suit for damages may be brought against an employer who wrongfully discharges an employee.

An employee has the obligation to be honest and faithful in the performance of duties. When trade secrets are disclosed to an employee, he or she must not reveal them to others either prior or subsequent to employment. In some cases, an employment contract specifies that the employer owns any new ideas or inventions created by the employee during the period of employment. When this is true, the employee has no rights in the idea or invention nor any right to ask for additional compensation.


An employee can enter into an agreement to work without compensation, but in the absence of such an agreement, an employer must pay an employee at the agreed rate. The employer cannot delay payment of wages or substitute something other than money unless the employee assents. The employee is entitled to his or her wages as long as the work is completed. If an employer wrongfully discharges an employee, the employee can collect all the money the employer had agreed to pay him or her.

The amount and type of compensation is ordinarily regulated by agreement; however, it is affected by a number of statutes. Employers are required to pay at least a certain prescribed Minimum Wage under most state laws, which must be no less than the amount set by federal law, unless it is a type of employment that is excluded under the law or the employer is small enough in size to be exempt from the minimum wage laws. Other state and federal laws mandate employers to allow for paid sick time and additional wages for overtime or holiday work. It constitutes a violation of federal law, the Equal Pay Act (29 U.S.C.A. § 206 [1963]) to pay men and women different wages for substantially similar work. Special laws protect Infants (individuals under the age of majority) by restricting the hours they can work at certain ages and proscribing their employment in certain kinds of jobs.


Child Labor Laws; Employment at Will; Employment Law; Labor Law; Labor Union.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

master and servant

n. the body of law, including statutes and legal decisions which are precedents, which relate to the relationship of an employer and employee. (See: employment, respondeat superior, servant)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
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