Elizabeth Chika Tippett, "The Master-Servant Doctrine: How Old Legal Rules Haunt the Modern Workplace" (U California Press, 2025)

Summary

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Podcast Summary:

New Books Network — Interview with Elizabeth Chika Tippett, "The Master-Servant Doctrine: How Old Legal Rules Haunt the Modern Workplace" (U California Press, 2025) Date: December 3, 2025
Host: Dr. Miranda Melcher
Guest: Prof. Elizabeth Chika Tippett

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Episode Overview

This episode delves into Professor Elizabeth Tippett’s new book, The Master-Servant Doctrine: How Old Legal Rules Haunt the Modern Workplace. The conversation explores the historical roots of American employment law, particularly the persistent influence of the “master-servant” doctrine—an archaic legal concept dating back centuries. Tippett explains how this framework shapes modern workplace power dynamics, influences laws around firing, pay, and benefits, and persists in both subtle and overt ways despite 21st-century reforms. The episode blends historical context, legal analysis, and practical examples, showing how these old rules still haunt—and sometimes strangle—workers today.

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Key Discussion Points and Insights

1. What Is the Master-Servant Doctrine?

• Definition and Relevance:
  • Tippett defines the doctrine as a set of historical legal rules placing workers under the control of employers (the “masters”), establishing duties of loyalty, and granting employers broad rights over work processes and outcomes.
  • Despite modern employment statutes, Tippett says, “everything in the background…where a statute doesn’t reach, those are all just master-servant concepts.” (03:50)
• Metaphor:
  • Jobs and statutes are “rocks” in a jar, but master-servant principles are “the water that fills all the gaps.”

2. How Employers Control Workers' Bodies and Workspaces

• Physical Control:
  • Employers determine the “physical setup” and safety of the workplace. Unless unionized, workers lack “much power over even something like workplace safety” (06:14).
  • Example: During the COVID-19 pandemic at Tyson’s meatpacking plant in Iowa, workers had little recourse for dangerous conditions. OSHA, Tippett notes, “couldn’t really react fast enough…Tyson wasn’t that interested in implementing safety protocols.” (07:25)
• Historical Continuity:
  • The feudal image of masters directing bodies in the field persists in modern rules about time, place, and safety.

3. The Origin and Consequences of Employment-at-Will

• Shift After the Civil War:
  • Employment-at-will (the right to fire for any or no reason) became widespread post-Civil War. Prior to this, Tippett discovered that “free white employees … actually had a lot of contract protections that protected them from unjust dismissal.” (09:00)
  • The change was linked to shifting racial dynamics; courts previously protected free white workers as a way to “police the color line,” differentiating them from enslaved Black workers.
• Convenience and Power:
  • Employment-at-will simplified employer control, reducing the need to defend contract terminations.

4. Changing Forms of Control: Piece Rates, Time, and Surveillance

• From Piece Rate to Hourly Wage:
  • Pre-1938, “piece rate” pay (paid by output) was common. The Fair Labor Standards Act shifted the norm to hourly wages, creating new incentives for employers to “manage each tiny increment of time.”
  • “McDonald’s drive-thru times” and “Amazon’s productivity rates” are cited as modern parallels—“sort of like a piece rate system, but it’s measured in time increments.” (13:30)

5. The Fair Labor Standards Act of 1938—Race, Gender, and Exclusions

• Title and Reality:
  • Although designed to promote fairness, the Act excluded whole categories of workers—agricultural and domestic workers (disproportionately Black, Latino, and female)—in order to “placate southern legislators” and protect racial and gender wage discrimination (16:15).
• Two-Tiered System:
  • Salaried workers (often white-collar) aren’t guaranteed overtime or minimum wage, giving employers incentives to maximize their hours.

6. Limits and Loopholes in Statutory Reform

• Rocks and Water Metaphor Extended:
  • The National Labor Relations Act (NLRA: protects unions) and Title VII (bans discrimination) are “the biggest rocks” in the jar.
  • Yet most US workers aren’t unionized, so “they’re just back in sort of master-servant land” (21:39).
  • Title VII only forbids discriminatory firings, not arbitrary or capricious ones; “Courts are…very deferential…They’re entitled to make any decision they want” as long as it’s not discriminatory (24:14).
• Paper Trails as Defense:
  • Modern HR practices—evaluations, job descriptions—are primarily tools for employers to “generate documents that protect the employer if anything goes wrong” (25:03). These are not necessarily designed for fairness.

7. The Rhetoric of “Support” and Modern Employer Benefits

• Enduring Exchange:
  • The foundational bargain is: employer control in exchange for employer “support” (benefits, steady wage, etc.).
  • In legal and cultural terms, the American system “invested in this idea that if you want health care…you get health care in exchange for work” (28:04).
  • This centrality of employment-based healthcare “props up the whole system.”

8. Why Unions Declined

• Master-Servant Concepts in Labor Law:
  • Tippett references James Adelson’s 1980s work: master-servant principles “infiltrated” and constrained labor law, e.g., rules allowing scab labor during strikes or limiting collective slowdown tactics.
  • The decline in union density is also linked to employer “unfair labor practices” (e.g., illegally firing organizers)—penalties for which are weak, so “it would be worth it” for employers to break the law (32:37).

9. The Rise of Independent and Gig Work

• Opting Out of the Bargain:
  • Many employers and workers now bypass the master-servant exchange entirely; gig employers “give up control to avoid the benefits” while gig workers “log in and out whenever [they] want.”
  • Tippett observes: “the master servant system is not really serving anyone very well right now.” (34:41)

###10. Policy Implications and A Way Forward

• Decoupling Benefits from Employment:
  • Tippett advocates for “lowering the stakes of employment,” especially by “disentangling having access to health care from having a job.”
  • Drawing on her experience as a Canadian, she says, “Canadians have a little bit of a different relationship to work…they’re not so dependent on having health care.” (36:08)
• More Work Flexibility:
  • Tippett calls for “more choice around how and when [people] want to work” and questions “whether wage labor is the only way for us to make a living.” (38:11)

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Notable Quotes and Memorable Moments

• On Why Master-Servant Doctrine Persists:
  “Everything in the background that fills in all the gaps where a statute doesn’t reach, those are all just master servant concepts…like a jar…the water are the master servant concepts.” — Liz Tippett (03:47)

• On COVID-era Meatpacking:
  “OSHA really couldn’t come in in time to help very many people at all during COVID…these workers were using like, you know, handkerchiefs to protect themselves.” — Liz Tippett (07:34)

• On At-Will Employment’s Racial History:
  “Courts were really protective of the contracts of free white workers…they were policing the color line…After the Civil War…they stopped really trying to protect any kind of wage laborers from unjust dismissal.” — Liz Tippett (09:15)

• On Employer Documentation:
  “The main purpose of all of those types of documents is primarily to generate documents that protect the employer if anything goes wrong…not largely…meant to help the workplace be more fair.” — Liz Tippett (25:13)

• On U.S. Healthcare and Employment:
  “We really invested in this idea that if you want health care, which in other countries they consider to be a basic right, in our country, you get health care in exchange for work.” — Liz Tippett (28:21)

• On Unions and Employer Resistance:
  “The penalties for [illegal anti-union activity]…are far lower than the benefits of avoiding and resisting unions to begin with.” — Liz Tippett (32:57)

• On Policy Change:
  “We need to lower the stakes of employment…in my mind reforming healthcare would be the biggest thing we could do to give people more choices around how and when they want to work.” — Liz Tippett (35:45)

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Important Timestamps

• [02:54] — Tippett introduces herself and the paradox of old legal rules.
• [06:05] — Discussion on physical control and workplace safety during COVID.
• [08:50] — Historical origins of employment-at-will.
• [11:33] — Piece rates, productivity pressures, and time management.
• [15:27] — Racial and gender exclusions in the Fair Labor Standards Act.
• [21:10] — Limits of NLRA and Title VII protection.
• [25:03] — The real purpose of HR documentation.
• [27:12] — Enduring idea of employer “support” tied to control.
• [30:26] — Theories for union decline, unfair labor practices.
• [33:25] — Gig work as a response to the master-servant bargain.
• [35:43] — Policy implications—healthcare decoupling.
• [39:15] — Sneak peek at Tippett’s new projects on employee-owned businesses, software liability.

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Closing

Prof. Tippett ends by previewing her future projects on employee-owned businesses and liability for software-driven employment harms, expressing hope for more workplace flexibility and greater worker agency.

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For more, read The Master-Servant Doctrine: How Old Legal Rules Haunt the Modern Workplace (U California Press, 2025).

Transcript

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Welcome to the New Books Network.

[Liz Tippett]

Hello.

[Dr. Miranda Melcher]

And welcome to another episode on the New Books Network. I'm one of your hosts, Dr. Miranda Melcher, and I'm very pleased today because we get to talk about a fascinating book published by the University of California Press in 2025 titled the Master Servant Doctrine How Old Legal Rules Haunt the Modern Workplace. Now in this book, the author Liz Tippett, who's here with me today, combines a whole bunch of things. We're going back in time in history, we're looking at things much more recently to understand how things that might not seem to be relevant today. We're literally going to be talking about masters and servants and some really medieval feudal sounding things actually do have relevance to a lot more modern stuff around pay and time management and time sheets and benefits packages and all the sorts of things that many of us now navigate now in the 21st century and yet are really not as far away from some of these much older ideas than we might think. So Liz, thank you so much for joining us on the podcast to tell us about your work.

[Liz Tippett]

I'm really excited to be here.

[Dr. Miranda Melcher]

I'm very pleased to have you. Could you start us off by introducing yourself a little bit and tell us why you decided to write this book. I mean, what even is the master servant doctrine and the master servant system?

[Liz Tippett]

Yeah, so I am a professor at the University of Oregon School of Law. And before I joined the faculty here, I was actually a lawyer in Silicon Valley. And you know, I represented big companies and small companies. And a lot of what we were arguing over was what are a workers obligations to the company that they work for. So when there would be lawsuits, when you would sue an employee who left, or an employee would sue you after they left, there would be a lot of arguments about, you know, master servant relationships and what is the duty of loyalty that a worker owes to the company they worked for and what does the company own that the employee produced. And there were just a lot of, there was quite often references to master servant concepts. And I think that people who aren't lawyers don't realize how much these old concepts still continue to influence current litigation and current employment practices and the way we organize work and think about what workers owe to the companies they work for. And so part of what I was trying to do with this book is to explain this paradox of why it is that we have a lot of employment laws today, many, many employment statutes that protect workers. And yet when you talk to people in the workplace, you know, you still have the experience of the workplace feeling very oppressive at the workplace and feeling like you don't have a lot of power in the workplace, especially if you're not unionized, even when we have all these protective laws. And that's because everything in the background that that's filling in all the gaps where a statue doesn't reach, those are all just master servant concepts. It's kind of like a jar that, you know, if you put a rock in it, it fills up a little bit of the jar. The rocks would be the statutes, but you fill up the rest of the jar with water. And the water are the master servant concepts that still influence anytime there isn't a statue.

[Dr. Miranda Melcher]

That's a really useful visual metaphor that I think we'll probably keep in mind throughout this conversation. So thank you for starting us off with now because there are so many ways in which these ideas of the master servant doctrine influence employment law and experiences today. You very helpfully in the book kind of broke it into different sections and I think we'll probably follow a bunch of those structures as well. So I wasn't surprised to read in the book that kind of one of the first things you look at is around rules for employers controlling the physical bodies of workers. Because if we're thinking about kind of the traditional feudal stuff, like I'm probably not the only one that's imagining a master sat on a horse, kind of directing someone in a field and saying your arms and legs need to do X, y, Z. Right. So is that actually what we should kind of still be thinking about in a way when we look at the laws that govern how employees can physically control the bodies of workers now?

[Liz Tippett]

Well, if you think about the workplace, who gets to decide what is the physical setup of the workplace? The employer. It's their property. They get to decide the entire layout, how they want to structure your time, how they're going to structure the work. And it actually turns out that workers, unless they're unionized, don't have a lot of power over even something like workplace safety. So your rights in the workplace with respect to safety are if you get injured, you can bring a workers comp claim that will get you some compensation for your injuries when you can't work and your medical costs. And then there's a government agency called osha, the Occupational Self, the Occupational Safety and Health Law, and that has various very specific regulations about, you know, protecting you from fall hazards and stuff like that. But other than that, it's all up to the employer. And so, for example, when we think about what happened during COVID and I talk a lot in the book about one of the Tyson meat plant in Waterloo, Iowa. You know, the workers had a work set up that was sort of crazy because the meat was flying by. They had to cut it really quickly. They were all working really close together. That's all up to the employer. As long as it's OSHA compliant, they can make you work as fast as they need to and scrunch you up really close together. And OSHA couldn't really react fast enough to all the complaints that it was getting about COVID exposure. And so OSHA really couldn't come in in time to help very many people at all during COVID And so these Tyson workers were left on their own. And Tyson wasn't that interested in implementing safety protocols or social distancing. And the local officials and the sheriff tried to do something, were completely ineffective. So these workers were using like, you know, handkerchiefs to protect themselves. I talked to the local sheriff who was in charge of that era, and he was just horrified by the conditions that he saw in there.

[Dr. Miranda Melcher]

So essentially, they can still tell you what the arms and bodies have to do at all times. And it doesn't sound like there's really that much that can be done about it, which is very interesting to see kind of that lack of change over time. But of course, not everything is exactly the same as it was. We do you talk about in the book some kind of key moments where certain things change. So going to one of them, you point to a moment sort of after the US Civil War, where employment at will becomes way more prevalent. Why in this moment is that change happening?

[Liz Tippett]

Well, so employment at will is this idea in the United States, and it's not necessarily present in this way in other countries. Employment at will is this idea that you can be fired for any reason or for no reason without cause and without any kind of notice. Like, really, you can be fired at any time. I mean, the flip side of that is that you can. You can quit at any time. And so I guess the sort of idea in the popular imagination is where did employment will come from? Well, it came from the Civil War and the idea that, you know, there's no more slavery and so you can quit your job at any time. And that's sort of true, but that doesn't necessarily mean that you have to have a legal system where employers can fire you at any time. And the story about where employment at will came from, of being able to be fired at any time is a little bit complicated. But one of the things I did is I looked at lawsuits over employees being white employees, free white employees being fired before the Civil War, in the decades leading up to the Civil War, and they actually had a lot of contract protections that protected them from unjust dismissal. And one of the hypotheses that are offered in the book is that part of why courts were really protective of the contracts of free white workers is they were policing the color line. And they were trying to maintain a really big moat between the rights of free workers under their contracts and all of the various unfreedoms that enslaved black people were exposed to. And they wanted to be very clear that being a free white worker meant something important. But after the Civil War, there wasn't so much of a motivation on the part of courts to police the color line because formerly enslaved black workers were now wage laborers. And so they stopped really trying to protect any kind of wage laborers from unjust dismissal. And that kind of opened the door to being less and less protective of workers. And then ultimately deciding that employment at will is actually a really convenient legal doctrine because then you don't have to decide these breach of contract cases.

[Dr. Miranda Melcher]

Okay, that's really interesting to kind of see the combination of what's convenient for the employer and how that's being framed in terms of useful to the employee. So that's definitely a kind of combination of things to keep in mind. Staying on the side of kind of what the employers are thinking here. How and why do we see those kinds of ideas or ideologies about employers wanting to control employees and their time? To what extent do we see that change from what you've just described over the course of the 20th and 21st centuries?

[Liz Tippett]

Well, so part of this is also a story about laws. So before there was a national minimum wage law in 1938, one of the really common ways of paying workers was called a piece rate. And so a piece rate is where you would pay workers by the piece. So the number of things they produce. So if they're making pottery, it's like the number of pieces of pottery they produce, the number of pieces of like shoe leather they sew together. And you didn't have to pay them a minimum wage. And the idea was that they'd be encouraged to work faster if you paid them by the piece they made. But of course, as workers started increasing their output, then factory managers would reduce the piece rate to keep the pay even, but increase productivity. So there was this sort of back and forth about how to set the piece rate. And, and so Frederick Winslow Taylor, who your listeners might be familiar with, is like the father of scientific management. A lot of what he wrote about was piece rate pay. And he had the idea that actually you should compensate your fastest workers really well because you want them to keep producing. You shouldn't cut back the piece rates, which the managers didn't really like. Frederick Winslow Taylor actually was not that popular in his day when he was talking about piece rate payment. But when Congress was passing a national minimum wage law under Fred Roosevelt's administration, fdr, they wanted to discourage peace rates. They thought it was exploitative. So they switched to a minimum wage that's based on time where you have to be paid a minimum amount for each hour you work. And some workers were excluded from that law. But that really changed employers incentives around how to manage workers who are paid by the hour as opposed to salaried workers. And so hourly workers, the incentive became to manage each tiny increment of time that they work to maximize their productivity there and that you can sort of see examples of that in the news. For example, Amazon has a reputation for setting really high rates for how much you have to produce each hour, which is actually ends up being kind of similar to a piece rate. But even, you know, even regular service sector jobs, they are measuring every single thing workers are doing. So I was at McDonald's the other day in the drive through and I saw a screen up in the drive through where they were measuring the exact amount of time each car was waiting and how fast you were going at filling their orders. And then, and then, and then they had some sort of competitive grid for all the competing McDonald's in the entire region to see if you were faster than the other McDonald's. McDonald's. So what we have now is sort of like a piece rate system, but it's measured in time increments and trying to get people to work as fast as possible. That is, if you're paid hourly, of course.

[Dr. Miranda Melcher]

That's such an interesting comparison though, because it doesn't, I mean, it's not the same term, right? It doesn't sound like the same thing on the face of it. And then you explain it and it's like, oh, wait a second. This is really very much the same sort of thing that's going on, which is a fascinating comparison to see across times. So thank you for helping us see what's sort of embedded in current practices. But as you said, this is very much a sort of law story as well. So I wonder if we can talk about a very specific law, the Fair Labour Standards act of 1938, because at least from the title, it sounds good, right? Fair labour standards, yay, equality. And yet you talk about in the book that there's a whole bunch of problems around race, gender and hierarchy that are a lot less fair than that title might both at the time and going forward, Is that right?

[Liz Tippett]

Well, the Fair Labor Standards act was not an anti discrimination law, but if it had applied to everyone, it would have had that effect. So in the 1930s, wage discrimination was really common. It was perfectly legal to pay women a lower wage than men. And that was quite routine. It was legal play, pay black workers and Latino workers a lower wage. And so when Congress wanted to pass a minimum wage statute, one of the effects of that would be that everybody would be paid the minimum wage. So it, it leveled it out. You wouldn't. You actually could not pay all women a lower wage. If that lower wage is below minimum wage. You couldn't pay black workers a lower wage than minimum wage. And that was quite controversial in Congress. And that was sort of the subtext for some of their negotiations around how they would structure this law. And rather than just drafting the law to Say, well, actually you can still discriminate on the basis of gender or race, which you could if you were paying more than the minimum wage. What they ended up doing is, was they had a carve out for saying, well, certain types of work aren't eligible for the minimum wage. And so they ended up carving out agricultural workers as not being eligible for the minimum wage. And also domestic labor, so like taking care of children, cleaning homes. And it turns out like, you know, women disproportionately are the ones who are doing domestic work for pay and also especially women of color. And then at that time, black workers disproportionately made up agricultural workers as well as Latino workers. And so by carving out those two types of workers, they were able to sort of placate southern legislatures who didn't like the idea of having a minimum wage for everyone. So there's also a different type of exclusion for workers who are paid a salary, but those workers are on the upper end of the wage scale. So those would generally be considered like office workers, white collar workers. Those workers don't get a minimum wage because they get a salary that covers all their time. And of course, an employer's incentive there is to get as many hours as possible about those workers because each extra hour is free. And so that's why you see things like, you know, at least before the pandemic, you saw companies like these big tech companies that would offer to do dry cleaning for their out for their salaried workers because they want them to stay in the office for as long as possible possible.

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[Liz Tippett]

Hmm.

[Dr. Miranda Melcher]

Okay, again we're getting this combination of like employers wanting control but being framed as ways that are beneficial to employees, which. Okay, I think we're probably going to keep seeing that a number of more times as I ask you about other aspects but given what you've just described there, like the issues embedded in this Fair Labour Standards act of 1938, I mean you're, they're not that hidden. Right. Like you can, you obviously have looked at them and gone. There are some issues here but there's reasons we've had laws since them as well to kind of try and you know, it wasn't seen as the solving all the problems, doing everything it needed to. We've got things like the NLRA or Title 7. Have those sorts of things since fixed any of these issues?

[Liz Tippett]

Yeah. So the National Labor Relations act is the law that protects union organizing, forming a union, bargaining collectively and the right to strike. That was a really important law and that law is really the main law today that limits master servant doctrines, that limits the employer's right to just issue any rules it wants that without. That allows it to just set any wage it wants without hearing from the workers and what their point of view is. So that law ended up being really important. So if you think about again going back to the jar with the rocks, the National Labor Relations act is one of the biggest rocks in the jar in terms of displacing the master servant doctrine as the default rules that governs the workplace. The challenge with the National Labor Relations act is that very few workers in the United States are protected by unions. So today union density is around 10%. So that means nine out of 10 workers in the United States are not in the private sector, are not protected by a union. And so they don't get all the benefits of having a say on working hours, working conditions, what the workplace rules will be, what are the rules around terminating you from your job. And so they're just back in sort of master servant land. Employment at will on sort of workplace rules and workplace governance questions. The other major statute that we've seen in the last hundred years that limits employer governance is Title VII of the Civil Rights Act. And that law prohibits a national law that prohibits discrimination on the basis of race, sex, gender, national origin, and religion. And that that law has been really important in terms of limiting the ways that employers hire and fire workers and promote and pay workers in a way that's discriminatory, but only based on those categories. So you still see master servant principles sort of affecting hiring and firing and promotion. Because that law really only prohibits discrimination. It doesn't prohibit hiring or firing someone based on reasons that are totally arbitrary or not merit based at all or capricious or made at the last minute, or you, you have it. Anything that's not discriminatory in the American context, and that isn't, for example, retaliating against a whistleblower, anything else is permitted for the most part.

[Dr. Miranda Melcher]

Okay, that definitely speaks to that metaphor of the rock and the water. How does it work? For example, if employers want to ensure that they can comply with something like Title VII of the Civil Rights act, but still have the water kind of working on that rock?

[Liz Tippett]

Well, part of it is, if there is a lawsuit over discrimination where someone says, I was discriminated against on the basis of my religion, the lawyers will go in there and say, hey, remember, employment at will. We're allowed to do whatever we want as long as. As long as you fail to prove that it was because of religion, whatever reason that we come up with is totally fine. And courts are tend to be actually very deferential to that idea. There are thousands of discrimination cases where courts will say, actually, we're not a super personnel department. We're not going to second guess what the employer decides as long as the plaintiff can't prove that it was a discriminatory reason, they're entitled to make any decision they want. So part of it is that courts will sort of tend to default back to these master servant ideas anywhere that there's a gap in the legislation. The other part of it is that employers became very savvy following the enactment of Title VII at generating documentation that supports their position. So, you know, a lot of the process that workers will see in the. In the course of, you know, hiring, getting hired and promoted and evaluated for a job, like formal job descriptions, job performance evaluations, any other documents, employer investigations, the main purpose of all of those types of documents is primarily to generate documents that protect the employer if anything goes wrong and just have good written records. So they can always say, the court, look, we have this job description, this person didn't meet the job description, or they had this performance evaluation and they were terrible. And so you should listen to us court about why this person was terminated. They are not largely do not exist for I think the notions that workers have, which, you know, if you didn't know anything about it, you would think that these things were meant to help, be the help the workplace be more fair or, you know, workplace investigation is meant to, you know, produce the right or fair result. That's not really the point of any of it. You know, again, unless you are unionized and your union has sort of bargained for fair processes, if the employer controls the whole process, I think you can assume that it's largely meant to serve their interests and their interest in, you know, protecting themselves if there's ever a lawsuit.

[Dr. Miranda Melcher]

Yeah, there's definitely a lot of employer interests going on there. But if we do look back again to those early feudal ideas, yes, of course it is the kind of. In the field, do what I tell you. But I mean, you know, I'm enough of a historian of that period. I've read enough historical fiction too, to know that there's meant to be some benefits on the other side. It's not just about control. Right. I'm sure we've all seen period dramas where, you know, at Christmas all the servants are given a particular package of goods or whatever. Like that's based on actual historical fact that the master part of this is meant to provide certain benefits, maybe even some protections to the workers. So what of that do we still have today?

[Liz Tippett]

Yeah, you know, I actually think that that part of the equation is one of the main reasons why this master servant system is still around. Right. So there is this idea that, yes, the master has the right to control and the master has the right to govern, but in exchange for that, and this was true under feudal concepts and I think is still true to some extent today, rhetorically that props up the whole system is the master is going to provide for you, the master is going to provide. The master has a duty of support to provide for your basic necessities. And so that duty of support has always been like kind of a rhetorical idea. It's generally not like memorialized in the law other than for example, minimum wage laws. But I think that's why employers can still demand a lot of sovereignty. And that's why governments who are drafting legislation and also courts will give a lot of deference to employers. And when they demand sovereignty is because they're providing this duty of support. They're providing for your basic necessities, they're providing workplace benefits. So in the American system, you can see this most strongly in our healthcare system, right? Our healthcare system in the United States is tied to employment. Not every worker is entitled to healthcare. Obamacare sort of changed some of the rules, like part time workers are not eligible for health care unless the employer wants to provide it. But Obamacare imposes penalties if you don't provide health care to a certain number of workers, depending on the size of your company. But we really invested in this idea that if you want health care, which in other countries they consider to be a basic right in our country, you, you get health care in exchange for work. And because I think in the United States we feel okay with this idea that your employer is going to provide for you and one of the basic necessities that you, that everyone needs is healthcare. And so that's the sort of trade off that we make in, in this culture, in this economic context is we demand a lot of employers, we demand that they comply with these laws, we demand that they provide, you know, these various benefits. Unemployment insurance, workers comp, a lot of states have sick leave. We demand all these things and we give the right to control in exchange for that. And then healthcare is the growing and biggest expense that they have to manage other than wages.

[Dr. Miranda Melcher]

That's interesting to see kind of what's there and what's not there necessarily with that side of things. We've mentioned though, unions a few times, and I want to pick up that thread as well, is part of the reason there's been such a decline in labour unions over the 20th century in the U.S. is that because of this system or. I mean, the system's been around for a really long time. So like, is there any correlation we can understand between these laws, the things that they do and don't cover, and the fact of labor union decline.

[Liz Tippett]

So the sort of rise and fall of labor unions over the course of the 20th century is a hotly debated topic among labor scholars. And so I get into some of the competing theories in the book, in the chapter on labor, so I can talk about that a little bit. I will say there was a really wonderful book written by James adelson in the 1980s where he talked about how all these master servant principles had actually infiltrated labor laws. And so one of the arguments that he notes is that it's really strange and hard to explain some of these legal roles that have developed within labor law, like the idea that if a worker is on strike, the employer is allowed to replace them with somebody else permanently, even though they're also not allowed to fire the workers that are on strike. Or the rules around worker slowdowns and how that's not protected part of labor activity. And so in the sort of same way that anti discrimination law has been kind of contaminated by master servant principles over time, James Adelson noticed that that was happening within labor law. Of course, that doesn't explain why our, our unionization rates have. Have fallen from like, you know, 40% to 10% today. And one of the, I think, most persuasive explanations that I saw was from an economist named Richard Freeman, who noted that the decline of unionization rates could be explained by a rise in unfair labor practices by employers. Unfair labor practices are actually illegal labor practices. So that would be something like, like firing a union organizer would be an unfair labor practice. But from an employer's perspective, unions are so threatening and so expensive that they're often willing to take the legal hit for doing something illegal. So they would, you know, perhaps fire a labor organizer today. Maybe they'll get in trouble a year from now, and maybe the federal agency responsible for that, we'll reinstate the labor organizer a year from now. But in between, maybe you've, you've managed to stave off the organizing drive, and maybe your workers didn't vote for a union, so it would be worth it. So generally, like the penalties for deterrence for committing an unfair labor practice really are far lower than the benefits of avoiding and resisting unions to begin with.

[Dr. Miranda Melcher]

Again, we get back to control versus benefits to employees. Does this kind of landscape that you've mapped out for us help explain the rise of independent workers or contract labor? Because that's been another big feature of employment over the last few decades.

[Liz Tippett]

Yeah, I think that's a really interesting trend. So if we think of the master servant system as this bargain of, you know, the employers can demand control and governance, but they have to provide these benefits and that's the trade that they make. I think it's interesting to think about the employers who've decided they don't like that trade, that the cost of benefits are too high and it's not worth the control that they get out of it and they'd rather pursue a different business model where they don't have the control, but they also don't have to provide all these benefits. So the main example of that in the last 10 or so years would be the gig economy, where, I mean, I think there are debates about how much control we exercise, like a company like Uber or Lyft exercises over its workers, but it also means that they don't have to comply with minimum wage or anti discrimination laws, workers comp, unemployment insurance, all those things, and then their workers just use the Obamacare health exchange. So I, and so I think it's interesting that the employers who've just thrown in the towel and said this isn't even worth it to us anymore and we'll give up control to avoid the benefits. And also I think it's interesting to see the workers who have opted out of that system as well, like all of the gig workers who are like, yeah, you know, I think I would rather have this job where I can log in and out whenever I want, even if this app exercises a lot of control over me and I don't have a boss I can negotiate with. I have to deal with this app that requires me to accept a ride within seconds, but I can turn off the phone and go fishing with my daughter on a Wednesday if I want to. I think both of those sides of the equation are really interesting and reveal, like, the respects in which the master servant system is not really serving anyone very well right now.

[Dr. Miranda Melcher]

Yeah, there's definitely, I think, a lot of ways in which people's reactions to finding out about this from you, from the book, is kind of like, oh, is that what it is? Like, like don't love that.

[Liz Tippett]

Right.

[Dr. Miranda Melcher]

Which is very helpful to understand on a kind of maybe individual level, but obviously there's also some wider implications from all of this. So can you tell us maybe about some of the policy things that could be taken from this?

[Liz Tippett]

So my feeling is that we need to lower the stakes of employment, like unwinding the master servant system requires, like reducing some of the demands that we make on employers if we're also going to demand less control from them. So I mean, for me, the biggest thing that would make a difference would be healthcare and disentangling having access to health care from having a job. So I'm Canadian and whenever I go back to Canada, I'm always struck by the Canadians have a little bit of a different relationship to work than we do here in the United States. It's not that they don't work hard, Canadians work just as hard, but they have like a bit of an arm's length relationship to their employers because they're not so dependent on having health care. So if they don't like a job, they can leave the job and they could pursue other types of work or they can wait until they get the job that they want that's a better fit for them. Canadians are also like feel a little bit more relaxed about labor unions. Just the stakes of employment are a lot lower in Canada and it just makes work less all consuming. And I think they just have a healthier culture around work, even though many, many aspects of work culture in Canada and the United States are quite similar. So in my mind, reforming healthcare would be the biggest thing we could do to give people more choices around how and when they want to work. To provide a historical comparison, there used to be this ideology of free labor and there was some race aspects to it because, you know, it was like an anti. It was an abolitionist ideology. But it was this idea that like wage labor is not what we should all aspire to, that we should aspire to independent forms of work or owning your own land and being able to work your own land or to do other things other than just being trapped in wage labor. I think there are a lot of problems with that ideology and it was also kind of racist because a lot of people didn't even have the possibility of being able to, for example, acquire tribal land and have a homestead. But what I think is interesting about the ideology of free labor is that it questioned whether wage labor is the only way for us to make a living, or that we should engage in wage labor our entire working lives, or whether it makes sense to intersperse wage labor with other things like caregiving for elders, or for children, or for education, or to do independent work, to start your own business, to do consulting work with many clients. And I just think it would be good if people just had more choice around how they want to work and the type of work relationship they want in their lives.

[Dr. Miranda Melcher]

Well, those are some pretty big questions there but always useful to have more information in order to make those kinds of decisions. So thank you for excavating all of this about the master servant doctrine and bringing it to those of us who are not engaged in legal cases the way that you were and presumably are. In fact, that is actually my final question. What might you be working on now that this book is out in the world? Anything you want to give us a sneak preview of?

[Liz Tippett]

Oh, gosh. Well, the project that I'm working on now is. Well, I'm working on a couple of projects. One of the projects I'm working on is looking at employee owned businesses because I think those are really interesting alternative example of how work can be arranged. So I we have a lot of really interesting employee owned businesses here in Oregon. So I am interested in doing a study that compares the workplace policies for employee owned businesses to businesses that have sort of a more ordinary ownership structure. I'm also doing a totally unrelated study looking at whether you can sue software companies for when the software causes a problem that violates employment laws. Like if you're using AI to hire all your workers, whether you ought to be able to sue the software company for the AI that makes a discriminatory hiring decision, or if you have a software problem that causes you not to be able to pay your workers on time or pay them the incorrect amount or not pay overtime. Should you be able to sue software companies for that and get some recovery if they are at least at part in fault for unemployment harm?

[Dr. Miranda Melcher]

All right, well, plenty of things to keep investigating then. Best of luck.

[Liz Tippett]

Thank you. Yeah, there's no shortage of projects on the horizon.

[Dr. Miranda Melcher]

There never are. Well, while you are off pursuing them, of course, listeners can read the book we've been discussing titled the Master Servant How Old Legal Rules Haunt the Modern Workplace, published by the University of California Press in 2024. Liz, thank you so much for joining me on the podcast.

[Liz Tippett]

Thank you so much, Miranda. I really appreciate it.