California Civil Jury Instructions (CACI)

3704. Existence of "Employee" Status Disputed

[Name of plaintiff] claims that [name of agent] was [name of defendant]'s employee.

In deciding whether [name of agent] was [name of defendant]'s employee, you must first decide whether [name of defendant] had the right to control how [name of agent] performed the work, rather than just the right to specify the result. It does not matter whether [name of defendant] exercised the right to control. If you decide that the right to control existed, then [name of agent] was [name of defendant]'s employee.

If you decide that [name of defendant] did not have the right of control, then you must consider all the circumstances in deciding whether [name of agent] was [name of defendant]'s employee. The following factors, if true, may show that [name of agent] was the employee of [name of defendant]:

(a) [Name of defendant] supplied the equipment, tools, and place of work;

(b) [Name of agent] was paid by the hour rather than by the job;

(c) The work being done by [name of agent] was part of the regular business of [name of defendant];

(d) [Name of defendant] had an unlimited right to end the relationship with [name of agent];

(e) The work being done by [name of agent] was the only occupation or business of [name of agent];

(f) The kind of work performed by [name of agent] is usually done under the direction of a supervisor rather than by a specialist working without supervision;

(g) The kind of work performed by [name of agent] does not require specialized or professional skill;

(h) The services performed by [name of agent] were to be performed over a long period of time; and

(i) [Name of defendant] and [name of agent] acted as if they had an employer-employee relationship.

Directions for Use

Not all of the secondary factors need to be given. Give only those factors that are supported by admissible evidence.

This instruction is primarily intended for employer-employee relationships. Most of the factors are less appropriate for analyzing other types of agency relationships, such as franchisor/franchisee. For an instruction more appropriate to these kinds of relationships, see CACI No. 3705, Existence of "Agency" Relationship Disputed.

Sources and Authority

Civil Code section 2295 provides: "An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency."

"The existence of an agency is a factual question within the province of the trier of fact whose determination may not be disturbed on appeal if supported by substantial evidence." (L. Byron Culver & Associates v. Jaoudi Industrial & Trading Corp. (1991) 1 Cal.App.4th 300, 305 [1 Cal.Rptr.2d 680], internal citation omitted.)

The burden of proving the existence of an agency rests on the one affirming its existence. (Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781 [111 P.2d 740].)

One who performs a mere favor for another without being subject to any legal duty of service and without assenting to right of control is not an agent, because the agency relationship rests upon mutual consent. (Hanks v. Carter & Higgins of Cal., Inc. (1967) 250 Cal.App.2d 156, 161 [58 Cal.Rptr. 190].)

An agency must rest upon an agreement. (D'Acquisto v. Evola (1949) 90 Cal.App.2d 210, 213 [202 P.2d 596].) "Agency may be implied from the circumstances and conduct of the parties." (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1579 [36 Cal.Rptr.2d 343], internal citations omitted.)

"Whether a person performing work for another is an agent or an independent contractor depends primarily upon whether the one for whom the work is done has the legal right to control the activities of the alleged agent. . . . It is not essential that the right of control be xercised or that there be actual supervision of the work of the agent. The existence of the right of control and supervision establishes the existence of an agency relationship." (Malloy v. Fong (1951) 37 Cal.2d 356, 370 [232 P.2d 241], internal citations omitted.)

When the principal controls only the results of the work and not the means by which it is accomplished, an independent contractor relationship is established. (White v. Uniroyal, Inc. (1984) 155 Cal.App.3d 1, 25 [202 Cal.Rptr. 141], overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548 [34 Cal.Rptr.2d 607, 882 P.2d 298].)

"Agency and independent contractorship are not necessarily mutually exclusive legal categories as independent contractor and servant or employee are. . . . One who contracts to act on behalf of another and subject to the other's control, except with respect to his physical conduct, is both an agent and an independent contractor." (City of Los Angeles v. Meyers Brothers Parking System (1975) 54 Cal.App.3d 135, 138 [126 Cal.Rptr. 545], internal citations omitted; accord Mottola v. R. L. Kautz & Co. (1988) 199 Cal.App.3d 98, 108 [244 Cal.Rptr. 737].)

The factors that may be considered in determining whether an agency exists are drawn from the Restatement Second of Agency, section 220, and are phrased therein as follows:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

These factors have been cited with approval by the Supreme Court. (Malloy, supra, 37 Cal.2d at pp. 370-371.) As phrased in the Restatement, they do not indicate in whose favor each factor weighs. The draft instruction states the factors in a way to suggest whether or not they point toward an employment relationship.

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, §§ 3-32

1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[2] (Matthew Bender)

2 California Employment Law, Ch. 30, Employers' Tort Liability to Third Parties for Conduct of Employees, § 30.04 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 248, Employer's Liability for Employee's Torts, §§ 248.15, 248.51 (Matthew Bender)

37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice (1992) Torts, §§ 3:5-3:6

(New September 2003)