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Employer And Employee

( Originally Published 1918 )



An Agreement to work for another is a very common kind of contract in business life.

There are two general kinds:

1. To do some particular thing.

2. To do whatever the employer may direct.

Contracts of this nature have the same essential elements as contracts of any other nature: The parties must be competent to contract; the thing to be made the subject of contract must be stated; the consideration must be fixed; there is a definite time of performance, and definite times of payment.

Brokers, commission merchants, lawyers, tradesmen and many others belong to the first class; clerks and all others employed to do general work belong to the second class.

The act of employing in both classes is a contract in which each party agrees to do certain things.

The Compensation.—All agreements to em-ploy contain a promise to pay for the services rendered, which promise is either expressed or implied.

When services are requested there is always an implied promise to pay what they are worth, that is to say, the price usually paid by others for such services.

Employee's Agreement. — The person employed to do a certain work must fulfill his agreement, but he need not do anything else. It is an implied part of every agreement to render services that the work will be done with ordinary skill, care and diligence. A failure in this makes the employee forfeit his compensation, no matter how much he has done. If another does the work, the party to the agreement is in all respects responsible for the work done.

Loss or Injury.—When one has another's property in his possession he is expected to take reasonable possible care of it; if through his carelessness it is lost or injured the careless one is not only not entitled to any compensation for what work he has done, but must compensate the owner for his loss or injury. For losses occasioned otherwise he is not responsible. (See Bailments.)

Length of Employment—Where in the second class a person is employed to perform a certain class of duties, the time for which he is hired is an important element, whether that time be a day, a week, a month, a year or longer. When no time of service is specified, the time when payment is made will indicate the length of employment. Thus, if a clerk, messenger, etc., is hired for no fixed time, but at so many dollars a week, or a month, it is hiring for a week or a month, respectively. If the work continues the next week or month in the same manner, it is a new contract on the same terms.

Discharge of Employee.—An employee may be discharged at the end of his time without any cause or previous notice. If hired at so much per week and for no definite time he may be discharged at the end of any week, or even during the week, and he has no right to insist upon working after he is discharged. If, however, the discharge is without good cause, i. e., if the work is all right, he is entitled to payment for the whole period. If, on the other hand, there was good reason for the discharge, arising from his own fault, he is entitled to no pay for any of that period.

Leaving Service.—An employee can leave at the end of the time without giving notice. But if he leaves before the expiration of the time he is entitled to no pay for that period, no matter how much of the time he has worked.

Thus, if he agrees to stay a month and leaves at the end of three weeks he will be entitled to nothing. The general rule applies here as else-where. Each party must keep his part of the con-tract if the other does, but need not if the other does not.

Injunctions Limited.—Section 20 of the Clayton Anti Trust Law, provides "That no restraining order or injunction shall be granted by any court of the United States, or the judge or the judges thereof, in any case between an employer and employees, or between employers and employees, or between employees, or between per-sons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right, of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney. And no such restraining order or in-junction shall prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from commending, advising, or persuading others by peaceful means so to do; or from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or abstain from working; or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value; or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might law-fully be done in the absence of such dispute by any party thereto; nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States."



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