The Master Servant Doctrine: How Feudal Law Still Shapes Modern Work | Elizabeth Tippett

Summary

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Podcast Summary

Work For Humans: "The Master Servant Doctrine: How Feudal Law Still Shapes Modern Work"

Date: November 4, 2025
Host: Dart Lindsley
Guest: Elizabeth Tippett, Associate Professor, University of Oregon School of Law, author of The Master Servant Doctrine: How Old Legal Rules Haunt the Modern Workplace

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Episode Overview

This episode explores how the centuries-old Master Servant Doctrine, rooted in feudal Britain, still permeates modern American employment law, governance, and culture. Dart Lindsley and Elizabeth Tippett delve into the doctrine's principles—control, governance, and the (moral) duty of support—analyzing how they underpin “at-will” employment, HR practices, worker rights, and the binding of essential benefits to jobs. The conversation also unpacks the dangerous history and enduring cultural baggage of these legal norms, including legacy issues derived from the era of slavery in the US.

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Key Discussion Points & Insights

1. Origins of the Master Servant Doctrine

[04:17 – 06:11]

• US employment law is a direct descendant of British “master servant” law.
• The “master” had the right to control, govern, and dismiss; in return, a (somewhat moral) obligation existed to support the worker’s basic needs.
• Governments historically delegated authority and the duty of care to the “master,” creating “mini-governments” within each household or organization.

Quote ([06:34] – Elizabeth Tippett):

“Courts are very reluctant to meddle in an employer's affairs unless the legislature has said... actually, employers are not allowed to do this. But even when the legislator has said that, the courts will still try and give employers as much latitude as they can, because there's this background idea that this is their territory, their domain.”

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2. Enduring Principles: Control, Governance, and Support

[11:37 – 20:57]

• Right to Control: Employers dictate duties, worksite safety, schedules, terminations—unless unionized, workers have nearly no say.
• Right to Govern: Employers set workplace rules and handbooks; many policies are unexplained “boilerplate” or legacy from past events.
• Duty of Support: Now more rhetorical than legal, this principle underpins why benefits bind people to jobs. The “support” employers provide (e.g., healthcare) remains based on company discretion, not public provision.

Quote ([13:22] – Elizabeth Tippett):

“They don’t need to put [location policy] in the contract because it’s up to them. Employment at will... gives them the right to say, ‘You need to come back to the office or you're done.’”

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3. The Doctrine's Toxic Variant: Slavery’s Impact

[22:07 – 25:41]

• US labor history cannot be separated from its history of slavery—a “toxic variant” of master servant logic.
• Rights of free white workers, in the 1800s, were defined in opposition to the total lack of rights held by enslaved people.
• After the Civil War and with industrialization, “at-will” employment took root as courts became less concerned with upholding a stark racial (color) divide.

Quote ([22:21] – Elizabeth Tippett):

“The narrative they used to justify slavery was, well, they're dependent on us, we're providing for them. But the economic reality is enslavers... were dependent on the enslaved people.”

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4. Modern Manifestations: Contracts, Surveillance, Non-Competes

[32:56 – 38:25]

• Master-servant roots explain the pervasive employer control seen in surveillance, scheduling, and class action waivers.
• Arbitration agreements that limit employee legal recourse descend from more recent statutes rather than master-servant law.
• Control through benefits—especially healthcare—results in “job lock” (workers can’t leave jobs due to restrictive benefits access). ACA (Obamacare) addressed some of this.

Quote ([36:39] – Elizabeth Tippett):

“Before Obamacare... if you had a preexisting condition... you really couldn't leave your job... Obamacare was... one of the most significant employment law reforms... because it made it so much easier to leave a job.”

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5. Psychological & Cultural Dimensions

[44:17 – 46:23]

• The enduring “entitlement” of companies to exert authority is more cultural than strictly legal.
• Companies often play defense; policies persist as sediment from previous legal threats, not intentional design.

Quote ([45:19] – Elizabeth Tippett):

“A lot of why the master servant doctrine is around is a cultural idea... a cultural idea that companies have, that management has, about what is owed to them that they continue to advocate for in court.”

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6. HR and Discrimination Law

[46:23 – 51:34]

• HR as a discipline rose to support compliance after the 1964 Civil Rights Act, especially Title VII.
• HR often takes the “fall” for managerial decisions (hiring, firing, promotions) it doesn’t actually drive.
• Occupational segregation: HR is dominated by women, which coincides with a decline in status and power vs. older labor management roles, which were largely male and central when unions were stronger.

Quote ([47:06] – Elizabeth Tippett):

“HR really arose and came into its own following the passage of Title VII of the Civil Rights Act... In a way, we expect too much of HR. HR gets blamed for a lot of corporate decisions, when in fact HR is mostly just implementing what managers decide...”

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7. Language, Ownership, and Intellectual Property

[27:01 – 32:11]

• Language of modern employment (“talent acquisition,” “human capital”) retains a sense of ownership akin to slavery-era distinctions.
• Laws around non-competes, intellectual property, and the “duty of loyalty” to employers all tie back to the employer’s right to control and profit from workers’ abilities.

Quote ([27:01] – Dart Lindsley):

“So people are our most important asset... talent acquisition, which implies ownership, human capital. And so there are all these terms of ownership that exist in modern employment.”

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8. The “Employee as Customer” Debate

[41:18 – 46:05]

• Lindsley argues, employees are free to leave and thus, in some ways, resemble customers exchanging value.
• Tippett: Legally, nothing prevents companies from treating employees as customers; the master-servant model is just one philosophical default, not a legal mandate.

Quote ([44:17] – Elizabeth Tippett):

“If you're thinking about it from the corporate perspective, there's no legal reason you can't treat your employees like customers... there's no reason that you can't take a more egalitarian view towards people who are working for you.”

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9. Reflections on Work, Value, and Time

[53:36 – 59:06]

• Tippett reflects on her own job: fulfilling, full of autonomy, and highly valued, but ultimately just one aspect of a meaningful life.
• She emphasizes that time and attention are the true costs and values of work.
• Discussion of how some jobs (like Amazon fulfillment) treat every second of paid work as precious, but not unpaid time (e.g., time spent in required security lines).

Quote ([57:06] – Elizabeth Tippett):

“Even the best job in the world... it's still like a J, O, B... Trading your time on this earth for that job... Other things matter, too. They matter as much.”

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Notable Quotes

• On the doctrine’s persistence:
  “The persistence of this really old idea from feudal England seems really strange to me because there's tons of other old ideas... that did not survive to modern day America.”
  — Elizabeth Tippett ([10:24])

• On power and employee speech:
  “In the workplace, the only workers who have a protected right to free speech are government workers... private sector... you don’t have any legally protected rights to free speech. So who decides what you're allowed to say? Your employer.”
  — Elizabeth Tippett ([08:33])

• On non-competes and the duty of loyalty:
  “The duty of loyalty is part of the same idea... The duty of loyalty is the justification for non competes.”
  — Elizabeth Tippett ([30:52])

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Important Timestamps

• Introduction & slavery influence: [00:03 – 01:07]
• Define Master Servant Doctrine: [04:17 – 06:11]
• Principles explained (Control, Govern, Support): [11:37 – 20:57]
• Slavery & US law: [22:07 – 25:41]
• Ownership language & IP: [27:01 – 32:11]
• Arbitration and employee rights: [32:56 – 38:25]
• Healthcare & job lock: [36:39 – 41:18]
• "Employees as customers": [41:18 – 46:05]
• HR’s historical roots: [46:23 – 51:34]
• Tippett’s personal reflections: [53:36 – 59:06]

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Memorable Moments

• Boilerplate in Employee Handbooks:
  Elizabeth describes how modern HR policies often persist as unexplained, sedimentary “layers.” ([16:00 – 18:17])
• Amazon security lines as example of disregard for worker time:
  Even "the most efficient company in the world" wastes unpaid worker time ([59:06]).
• Reflection on work’s place in life:
  “Even the best job in the world... still just a job. Other things matter, too.” ([57:06])

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Episode Takeaways

• The Master Servant Doctrine remains deeply embedded in how American workplaces operate, shaping culture, policy, and law.
• While legal roots matter, most day-to-day employer-employee relationships are also shaped by company culture, inertia, and societal expectations.
• Significant features of today’s workplace—lack of free speech, at-will employment, job-based benefits—all trace back to these inherited frameworks.
• Employers have legal and organizational flexibility to redesign work relationships more equitably; it is largely a matter of will and vision.

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For more information on Elizabeth Tippett and her book, search “The Master Servant Doctrine” or visit LizTippet.com.

Transcript

[A]

When you think about labor history in the United States, you can't ignore slavery. There was this narrative in slavery that enslaved people were dependent on slaveholders when it was the actual economic reality of slavery is that enslavers, the slaveholders, were dependent on the enslaved people because they were the recipients of all of the economic output of enslaved people. Obviously, the rights today are nothing like slavery. So I'm not saying that. But if you think about the rights that an enslaver had, they had the right to sell an enslaved person whenever they wanted. An enslaved person had none of that. They were stuck in that unpaid, violent job for their entire life. This toxic variant of the Master servant doctrine, we inherited that. It was part of our legal system here in the United States up until the Civil War. All these things are in the mix for why we have the laws and assumptions and cultural views about work that we do today.

[B]

Welcome to the Work for Humans podcast. This is Dart Lindsley. Modern work is haunted by an idea that originated in feudal Europe. It's called the Master Servant doctrine and it comes from a time when workers were seen as subjects under the control of their lords. The doctrine granted nobles and eventually employers the right to command labor and govern the workplace alongside their authority. It also demanded that employers provide support for the people who worked for them. Both employers and workers were bound by these laws, although workers were more severely punished when they broke them. My guest today is Elizabeth Tippett, associate professor at the University of Oregon School of Law and the author of the Master Servant Doctrine. How old Legal Rules Haunt the Modern Workplace. In our conversation we talk about how this centuries old framework still underpins many laws of modern employment. From HR policies designed to defend companies rather than protect workers, to at will employment and the way benefits bind people to their jobs. We explore how laws meant to manage servants or wound their way through a combination of legislation and jurisprudence to inform the hidden architecture of the modern corporation and what it would take to imagine something better. All right, if you enjoy the show, follow or subscribe wherever you listen to podcasts. And now here's my conversation with Elizabeth Tippett. Elizabeth Tippett, welcome to Work for Humans.

[A]

Thank you so much for having me. Dart. I'm so excited to be here.

[B]

Let me tell you the backstory of my experience with Master Servant doctrine. The first time I encountered it was when I was being interviewed by really kind of a Cambridge don and he had a very sort of posh accent and he said employees can't be customers because of master servant doctrine. And I was like, what the hell is that? I have no idea what that is. I think that's not a word we use in the United States. Maybe that's why. And I kind of forgot about it. But then I had Gemini review the book proposal that I'm working on, and I asked it to be a really severe skeptic. And it was the second one that came along and said, you know, this can't be true because of master servant doctrine. I'm like, oh, man, I need to find out what this is. And so, Serendipity, you are just now publishing a book. And congratulations. The book is titled the Master Servant Doctrine. How Old Legal Rules Haunt the Modern Workplace. And so we're going to dive deep on that.

[A]

Sounds great. And I'm excited for your book and you should definitely write it.

[B]

Everything is going well.

[A]

That's wonderful.

[B]

So far, everything's going well.

[A]

Oh, my goodness.

[B]

I know. So I'm going to assume that most people listening, like I hadn't, had never heard of the master servant doctrine. What is it and what's its origin?

[A]

Here's the crazy thing about workers in the United States. We did inherit our laws, our background laws from Britain. And so even though in everyday life you don't hear master servant that much, the open secret is master servant law is at the background of all American employment law. If you talk to any employment lawyer in the United States, no matter which side they represent, you're like, oh, master servant. Yeah, Employment law used to be called. Even in the United States, it used to be called master servant law. And today, if you look at the Supreme Court opinions, when they're trying to decide whether someone's an employee or an independent contractor, they talk about master servant. Who is the master? That's the employer, who is the servant, who's the employee? So if you go back to Britain, what does a master servant relationship mean? It means that your master, back in feudal times, that was the head of the household, they have the right to control you and the right to direct your activities. And they also have the right to govern you. They have the right to be in charge of you, to set rules about how all of this is going to work. And they have the right to decide when you're going to be fired. But also, if you go back hundreds of years, they also had this duty to provide for you, to provide your basic necessities. And these things all go together. I mean, the reason why local governments back at that time, during feudal times, pushed people into master servant relationships is they didn't want to be responsible for your necessities. They wanted someone else to be responsible. And so basically, governments delegated power to the master, and they said, okay, you, master, you can be in charge of these workers. You have to support them and provide for them, but we're going to let you be a mini king in your own domain.

[B]

That was something that I had never clued into before, and I've run into it in odd ways, which is that essentially master servant doctrine set up each household. I suppose also this applied to Lords and Commons as many governments, many governments with sovereignty, not exactly sovereignty, but rule.

[A]

Certainly no sovereignty, Absolutely sovereignty, Absolutely sovereignty. And even today, you do see courts are very reluctant to meddle in an employer's affairs unless the legislature has said, well, actually, employers are not allowed to do this. But even, even when the legislator has said the employers aren't allowed to do this, the courts will say, okay, but we're going to still try and give employers as much latitude as we can, because there's this background idea that this is their territory, this is their domain, and we're going to keep our hands off of this in a way.

[B]

And I noticed something interesting, and I think we'll talk about it a couple of different times, which is, so now you've got each little government inside a corporation or a company, and I'm going to join that little nation by contract. And so legislation, employment legislation is a fairly recent invention, but employment law to some extent determines what I cannot contract away.

[A]

That's right.

[B]

So I went back and I looked at my past employment contracts in preparing for this, and I saw what I signed away. I really hadn't paid attention.

[A]

Oh, is that right? What did you sign away?

[B]

The main thing you sign away that hurts me is free speech.

[A]

Sure.

[B]

Which is, I thought, no, this is the United States. We have free speech. But I learned when I started publishing that, in fact, there were almost no limits on the limits on my free speech in the United States. First of all, you can talk about politics, and you're free to do that. And you're free to talk about working conditions and you're free to talk about forming a union. But beyond that, it's absolutely the judgment of the company to determine whether or not what you are publishing is acceptable to them. So that was an example.

[A]

So in the workplace, the only workers who have a protected right to free speech are government workers. And even then that's kind of limited by oddly, master servant principles. It's kind of in the weeds. But let's talk about the private sector. Since we're mostly interested in that you don't have any legally protected rights to free speech. So who decides what you're allowed to say in the workplace? Your employer. Because that's part of their essentially background right to govern the workplace so they can write a policy that puts whatever restrictions they want on your ability to talk subject to the background laws that exist that you actually already described. So the National Labor Relations act does protect your right to talk about working conditions. That's probably why you saw an exception in whatever social media policy you were looking at, for example. And your right to unionize, that's protected by law. That's why it's in there. But they have the right to set whatever policy they want and give it to you. And if they want to fire you for violating that policy, that's perfectly within their rights as long as it doesn't interfere with your ability to discuss working conditions or your right to try to form a union.

[B]

So when we look at the origins of master servant doctrine, we talked a little bit about what problem it solved. It solved the problem of governments didn't want to essentially outsourcing some things that could be considered their responsibility. And one of those is the support of the people who work in a household or a company. Did it emerge self consciously or like let's make this decision or did it emerge just out of the mists of history as this is our practice and when do we first see it?

[A]

My reaction to that, I think the stranger question is why does it continue regardless of where it came from? Why are we still today in this situation where we rely on employers for too much? How did we end up in a American system where health care is tied to your work? I mean, I find that all really strange. The persistence of this really old idea from feudal England seems really strange to me because there's tons of other old ideas from feudal England that did not survive to modern day America. And so I think it's really interesting to think about what keeps this alive today. And part of it is employers are very persistent about advocating for their right to this or that. When they're in litigation, they organize their workplace and they write policies that contain this idea. And I think legislators, Congress is reluctant to interfere too much because we rely so much on companies to provide basic social welfare services to most of America.

[B]

Let's talk about the principles of the master servant doctrine. There's the right to control, the right to govern, and the duty of support. What's the right to control?

[A]

The right to control is kind of the extension of this idea that the workplace is the territory of the employer, so they have the right to control the physical work site. So if you think about workplace safety rules, they actually don't give workers a lot of rights to advocate for safety other than our labor organizing rules. They really assume that your employer is in charge of the work site and that, you know, if you get injured, you can file a worker's comp claim, but the employer is in charge of that. Or also the idea that the employer, while you are working, they decide how you're going to spend your time, they decide what your duties are, that's not up to you. And they decide when you're going to work and how long you're going to work for. And that's really not up to you to say. And you have no, as a matter of law, you have no input over that, again, with the exception of a unionized workplace.

[B]

You know where I noticed this? It crossed my mind when we were all talking about return to office. I thought, does my employer actually get to say where I physically work? And I'm still not sure. And the reason is it wasn't in my contract. In the United States, we have employment at will. And so if you do something your employer doesn't like, they can just fire you. And so just already there's the power there. But there's nothing in the contract that says that there's control over physical location of work. But in reality, it sort of turns out that way anyway.

[A]

They don't need to put it in the contract because it's up to them. Employment at will, which is also part of the whole right to control. They have the right to control whether you're going to continue to be an employee again, unless they're firing you for an illegal reason, like they're discriminating against you based on your race or your disability. So sometimes these return to work questions can implicate disability protections if they're treating disabled workers worse than other workers or if they're not providing a reasonable accommodation. But other than that, the employment at will idea that you can be terminated at any time for any reason or for no reason without notice, that gives them the right to say, you need to come back to the office or you're done.

[B]

What's the right to govern?

[A]

The right to govern is this idea that the employer gets to set the rules again, if they're like a mini sovereign, they set the rules about how work is going to occur. They set the rules about what is forbidden and what's permitted. They Just get to decide how they're going to hire, fire, promote, pay people. I mean, that's not totally free from actual legislation that says pay equity, for example, race discrimination, whistleblower retaliation. But other than that, if you think about, say, when you start a job, at least back in the day, they used to give you this big thick document called an employee handbook. I don't know if they still do that now or if it's just all electronic. But you can think about an employee handbook as, this is the rules of your workplace that they decide. This is the legislation of your employer that you have to abide by. And some of it is actually reciting what the actual legal rules are from our legislators. But some of it is the rules that they decide they're going to have, like showing up late or what their social media policy is.

[B]

One thing that occurs to me in regards to that is that at least for corporations, the longest lasting thing is the corporation, not any employment contract. And that there's really nobody in the corporation who is going to last longer at the corporation than the corporation, I mean, barring going out of business or being acquired or something. And so there's a way in which these rules of governance, there's no them associated with it. In other words, many of them are set by history in the corporation as opposed to by anyone who's presently there.

[A]

Like, where do these employees handbooks come from? Like, where does this language come from? You ask somebody in human resources or the legal department, where did this policy come from? They're like, I don't know. It's kind of like legislation persists over time. And this is a little bit outside of the book, but I think the persistence of boilerplate is so interesting and the persistence of corporate practices over time. People do things because they've always done it this way. I did this study some years ago on harassment trainings, and I watched dozens of harassment trainings and I looked through the notes of harassment trainings, and it turns out the content of harassment trainings just persists over time. So you ask, where did this come from? And some of it is content from the 1980s that the new trainers are just using, because what everyone agrees that's what a harassment training is. And there's not a lot of thought that goes into what would be effective for helping people learn what would actually change someone's attitudes or change their behavior. It's like, oh, we're doing this because we've always done it this way.

[B]

I'm trying to remember if I've ever written an official policy. In my career, I've certainly been involved in setting policy on new things. So, like return to office, been involved in helping to set policy on that. But most things are not new like that. And most things like that just cruise along without much thought, I think, except when we get sued and then we say, oh, better fix that one.

[A]

So I actually did write a lot of policies when I was a lawyer and a lot of contracts as well. You'd be looking at this huge document, this huge contract, and you go to the more senior lawyers and you'd be like, why is this in here? And they were like, well, I mean, I can't say for sure, but it's almost certainly the case that one time somebody did a thing that the policy didn't cover. So he added in this extra sentence to prevent that from ever happening again. And it just adds on to itself like sedimentary layers. And then you just end up with this vast untouchable thing.

[B]

And it may have been something not that happened to us, but we heard about it happening, oh, absolutely, at that other company, and so we decided to add that thing. And so the right to govern set policies of terms of employment, including the process for hiring, firing, compensation and promotion. And then there's the duty of support. And this one is very nuanced, I think. What is the duty of support?

[A]

So the duty of support is this idea that your employer has the duty to provide for you, but it's not really a legal duty in the same way that the right to control or the right to govern is a legal right that they're entitled to. This, the duty of support is almost like a moral idea. You have the moral obligation to support these workers in various ways. And because it's not like a really clear legal duty, today we have wage and hour law. That's a clear legal duty. But because it's mostly a moral obligation, employers can structure it really any way they want and distribute, I guess, a lot of workplace benefits. You know, unless the law requires you to do something as a matter of largesse, they're giving it to you. You have to do these things to earn it, or they're going to give you this thing to get you to behave in a certain way, or they're going to give it to the most favored workers that they want to retain the most. And so when we give companies power over benefits, we're giving them a lot of authority to decide how they're going to be distributed and how they're going to use those in ways that favor them. But Also use this idea rhetorically to say, well, don't mess with our right to control and don't mess with our right to govern. Because by the way, we're paying for all this stuff, including, by the way, health care, which is so exorbitantly expensive at this point for employers that I think their claim that they are owed something is legitimate. The average cost for a family insurance, the average premium now is like $25,000 a year.

[B]

Yes. Let me have a parenthetical statement for people who are listening to this who do not live in the United States.

[A]

Sure.

[B]

In fact, this is an interesting comparison because there are other parts of the world where the duty of support as regards to medical benefits does not accrue to the employer. It's something that's run by the government. But here in the United States, it is something that is company led. And so what this reminds me of is sort of a history of noblesse oblige that probably emerges from history.

[A]

I think when you think about labor history in the United States, you can't ignore slavery, because even though master servant principles did not originate in the United States, our American system included hundreds of years of slavery. And the law of slavery was part of the ecosystem about how we regulated work relations for some of our workers. And slavery was really the most toxic, poisonous, violent variant of master servant principles. And so actually, slavery illustrates the sort of toxic aspect of the duty of support. Because in some slave states, there was at least like a moral obligation that was used to justify slavery, that enslavers, the slaveholders had a duty to support enslaved people. And in a few states, there was actually a legal duty that was never enforced. But it was the idea that, oh, as the governors of enslaved people, we're entitled to this because we are providing for the wants and necessities of enslaved people.

[B]

Or perhaps, look, if we weren't taking care of these people, they would go hungry. There's this sense of we're saving these people from being without support, something like that.

[A]

There was this narrative in slavery that enslaved people were dependent on slaveholders when it was the actual economic reality of slavery is that enslavers, the slaveholders, were dependent on the enslaved people because they were the recipients of all of the economic output of enslaved people. And so they were actually economically dependent on all of the work that enslaved people provided. But the narrative they used to justify slavery was, well, they're dependent on us, we're providing for them.

[B]

But would you say that in the United States there was a kind of crosstalk between the laws governing employment outside of slavery and the laws governing slavery.

[A]

Yes, of course, if you look at the laws that applied to white workers in the 19th century during slavery, free white, free white workers, the rights of those free white workers were defined usually in opposition to slavery. So part of what it meant to be free and the employment rights that we gave workers under contracts was I have more than what an enslaved person has. So actually in the decades leading up to the Civil War, if you look at the contract rights of free white workers, if they were fired from their job, they had far more legal rights than workers do today under employment at will. In the sense that if you were fired from your job, you could bring a breach of contract claim to the court and say I was fired and it was not justified. And the court would actually assess that and say, oh, and. Or they would go to a jury and a jury say actually that was not justified, you should have been kept on. Here are some wages that you would have been owed. And part of why that I argue in the book, part of why these workers had courts were so protective of these white workers in these contract disputes is because they were enforcing the color line and they were saying, these white wage laborers, we're going to make sure their protected. And that there's a big distinction between the rights that you have as a wage worker and the complete lack of rights that enslaved workers had. And so one of the things I argue in the book is that following the Civil War, also in connection with industrialization, one of the reasons, there are multiple reasons, but one of the reasons why employment at will became more popular is because black workers were join the ranks of wage laborers and courts were no longer that concerned with policing the color line between a free worker and unfree worker. And so if it was convenient to adopt the employment at will doctrine, which it was for judges, there wasn't as much stopping them from doing that.

[B]

How unusual is the United States in the employment at will laws? I know a little bit about this and it's because when you consider where you're going to place your workforce internationally as a company, you think about the risk associated with it. And India, for instance, has employment laws that are very similar to the United States. So I guess it asks two questions. One is, did most of the Commonwealth countries inherit the doctrine in a similar way?

[A]

I'm not an expert on comparative law, but employment at will is atypical Employment at will. You can't necessarily draw a straight line between the feudal master servant principles and employment at will. But I will say that there may be some connection between our American system of employers have a lot of rights to employment at will. And if you think about slavery, and obviously the rights today we have today are nothing like slavery. So I'm not saying that. But if you think about the rights that an enslaver had, they had the right to sell an enslaved person at any time, for any reason or no reason, whenever they wanted. An enslaved person had none of that. They were stuck in that unpaid, violent job for their entire life and the life of all their descendants. So, you know, this toxic variant of the master servant doctrine, we inherited that. It was part of our legal system here in the United States up until the Civil War. The system got reordered after the Civil War. We had a lot of legislation in the 20th century, but all these things are in the mix for why we have the laws and assumptions and cultural views about work that we do today.

[B]

One of the things we've talked about a lot on the show is the terms of ownership that are used to describe employment. So people are our most important asset. And we have talent acquisition, which implies ownership, human capital. And so there are all these terms of ownership that exist in modern employment. And so that was a bright line during slavery, which was employees were not owned and slaves were. And yet we still have these terms of ownership in modern employment. On work for humans, we've been exploring the principles of multi sided management, which is the belief that work is a product that every company designs, builds, and delivers to employees. Along the way, people started asking how they could put these ideas into practice. So I founded the work design firm Elevenfold to help your company create the kind of work that makes teams feel alive and engaged instead of dead and dull so you can reduce turnover and build commitment. We're doing something revolutionary here. Learn [e-mail]. that's 11fold.com.

[A]

Oh, my goodness. Okay. Thank you so much for asking about that. And I think this is such a fascinating topic, and I don't really talk about it that much in this book, but it really influenced a lot of what went into the book. And there's two leading scholars that I want to tell you about who really influenced my thinking about this. One is Katherine Fisker, who wrote a really good book on the history of intellectual property at work. Totally brilliant book that really influenced this project. And also Orlie Lobel, who you may have heard of, who wrote a book called Talent Wants to be Free. So one of the things that Katherine Fiske says in her book is that in the early 19th century, there was no such thing as intangible intellectual property. So so much of what we today would consider trade secrets, those were not considered intellectual property. What was considered intellectual property was a map or like a dye recipe or something like that. Because she argues, and this is just one line in her book, but it influenced me so much at that time in the early 19th century, ownership of ideas, of people, ownership of ideas that were embodied in people, that you would have knowledge and skill, intellectual assets. I guess those were identified with slavery because I was owning a person, owning intangible intellectual property, what you walked around with every day. And so it was cordoned off from what was understood to be work related intellectual property during slavery. That changed a lot. Obviously after the Civil War. Industrialization also made a huge difference. Sort of the change of people collaborating together to produce intellectual property created a lot of problems around deciding who owned workplace inventions. And Katherine Fisk goes in depth on this question, on her book. But I thought that aspect of her book, and it was really just one sentence, was just so fascinating.

[B]

And Orly's book was about non compete clauses, at least a lot of it was. And non compete clauses in the United States say that if you leave a company for three years, you cannot work for a competitor in the same field. And many states have outlawed that and California is one of them. But the majority of states in the United States still retain non compete clauses.

[A]

Yeah, so there's this concept that I don't talk about in the book. I actually cut it out of the book. I talked about it at such length and it didn't fit. Is this idea of the duty of loyalty. The duty of loyalty is this background principle that you owe your employer the duty not to undermine them, not to go into a deal for yourself at the expense of your employer, not to give away the intellectual property that you have access to while you're working. It becomes very complicated when you're preparing to leave, preparing to compete. It depends on the state law anyways. The duty of loyalty is part of the same idea. And when you talk to lawyers and if they're arguing about it in court, they act like the duty of loyalty has been around forever. And maybe they suggest that it's part of this old heritage, but actually the duty of loyalty is kind of new from a historical standpoint. The duty of loyalty like really arose in the early 20th century. I guess it's not that new, but it's not been around for time immemorial. It was really part of this broader industrialization where companies were trying to create branding and trademarks and intangible intellectual property and trying to gain property ownership of those things. And the duty of loyalty is the justification for non competes. That's why companies are allowed to ask for non competes.

[B]

Because you shouldn't be leaving in the first place.

[A]

No, because they're protecting that part of the intellectual property that belongs to them. When you leave, all those customer relationships you have, those belong to the company. They're not yours. They're intellectual, kind of. They're business property of the company. So when you go away, you can't use that against them. Same thing with intellectual property.

[B]

One of the things I learned reading Talent Wants to Be Free Again, that's Orlie Lobel's book, is that the duration of patents was tied to the duration of apprenticeships. And so the original patent was three apprenticeships long. Because the reason for patents is that you didn't want your apprentice to move on to the next company and take your intellectual property with them.

[A]

Huh.

[B]

We've talked a little bit about how master servant doctrine appears in modern workplace law and practice. And because I'm exploring this question of whether or not we can't consider employees, customers, because employees are within a master servant doctrine model. And so because I'm exploring that boundary, there's a couple of areas of control. Well, areas of the master servant doctrine that's come into the present day that I particularly want to examine because they seem to be the ones, the things that really differentiate customers from employees. And so one of them is the right to control. And I'm going to go through some of the ways that it's enacted by companies today. Surveillance and monitoring. So the right to use technology to track workers movements and productivity in real time. Scheduling and time management. Piece rate systems, which is paying workers based upon output to control the pace of work. Arbitration agreements, so enforcing clauses to limit collective and legal actions. This was one I found in my own contract, which surprised me was the banning of class action suits, which I didn't know that that was a right you could sign away. But it was in at least one of my employment contracts. And I think this is a good example of where if it's not legislated, then you can sign away the right to it in an employment agreement. And so this is one of the things that I would have thought you could not sign away is your right to class action.

[A]

We can blame a lot of things on master servant doctrines, but weirdly, signing away your rights through an arbitration agreement is actually Congress's fault. And to a lesser Extent the courts, because of a law called the Federal Arbitration act that's really old that said that arbitration contracts won't be disfavored. And it's produced a lot of really weird Supreme Court case law over time that has gone in this really strange direction. And in the last, since like 2011, the Supreme Court has said, oh, in order for arbitration agreements not to be disfavored and for us to treat arbitration like it's meant to be, you can't necessarily force corporations to do class arbitration. So anyways, that's actually Congress's fault. Most other things are not. But that one is Congress plus the Supreme Court's fault.

[B]

That's very interesting. I can see that if you're going to say arbitration agreements can be mandated and class action suits would go around arbitration agreements, you have to be able to make it possible to say class action suits are forbidden by contract. So I understand it and I can see that it doesn't descend necessarily from master servant. So under control we have industrial welfare programs. And so this is very interesting which is that providing benefits tend to create dependency and control over workers lives is something that you wrote about. And that's a really tricky thing because when I think about it, I think, well, providing benefits for employees is fantastic, but then you realize that it also becomes a kind of control in a country where the cost of health care is so high.

[A]

And this was even worse before Obamacare, because before Obamacare, I mean, I think my students don't remember what it was like before Obamacare. Certainly you and I would remember what it was like if you had a pre existing condition like diabetes or heart disease. You really couldn't leave your job. Economists call this job lock because you'd have a really hard time buying insurance yourself on the open market. Or even if you got a new job, your new insurance policy might exclude pre existing conditions so you would never be able to get your diabetes care covered and so you really be stuck in a job. So Obamacare actually was, I argue, one of the most significant employment law reforms of the last several decades because it made it so much easier to leave a job. And in fact Obamacare might have also been partly responsible for the spread of the gig economy because it made it possible for workers to have these more flexible type work arrangements and still at least have an option for healthcare. Even if it's really expensive and cumbersome and maybe doesn't cover everything, at least it's an option. Or you could just leave your job and get a new job and not worry about your pre existing conditions not being covered. But even still today, for those of us lucky enough to get employment sponsored health care, it's really scary to go out and decide, well, I'm just going to go start my own business or I'm going to take a couple years away from work to take care of a sick family member. And if you don't have health care from another source, that's very daunting. So it does tie us to this one way of doing work, which is being an employee.

[B]

I don't really understand this dynamic in the history of benefits, which is that, as I understand it, unions argued on behalf of companies providing benefits. I have heard that at one point unions wanted to actually be in charge of benefits, but unions also argued on behalf of companies providing benefits. And then I don't quite understand this. If I was a company, I think I would want the government to take over benefits. I would want socialized medicine. I think, yes, because then I wouldn't have to deal with that and it would be a huge relief. And yet there's been such a fight against governments taking over benefits from industry.

[A]

I think it depends on which industry you're talking about. Certainly the health insurance industry, they don't want the industry to go away. But, and I don't speak on behalf of companies. I suspect if you talk to a lot of other industries, like for example, car industry, they're competing with Canada, where Canada businesses don't have to pay that expense for each worker.

[B]

And I may be wrong about that. I'd have to go back and I'd have to look at the U.S. chamber of Commerce and see which side they argued for on those laws. It's an interesting area to look into.

[A]

It didn't start out this way. And the story about health care in the United States is pretty interesting. It started out actually as a consumer insurance that could be purchased. It was hospital insurance that was offered by, I think it was Blue Cross. That would have been like in the 1930s. And then it really got a boost during World War II because companies were subject to wage caps. And there was a lot of competition for workers during World War II. And so health insurance was a way to attract workers without violating like, wage caps. And then there was a change to the tax code in the 1950s that said that premiums that employers pay for health insurance are not taxable. And so there became a tax incentive to shift wages over into health care. So one of the strange things about all of this is the United States government is to some extent indirectly subsidizing private insurance in the sense that employers are not subject to payroll taxes and high income workers don't pay taxes on the huge amount of money their employers are spending on health care.

[B]

Oh, that's very interesting.

[A]

Yeah. Today the average premium 25 some thousand dollars per family expected to go up like 6% next year. @ least that's approaching what Obama tried to tax as a Cadillac plan. That's how out of control health care costs have become even since 2010.

[B]

Let me read a few more of these issues of control. We have physical control, controlling workers environments, sometimes at the expense of safety, control over termination. So the power to terminate employee at will, control through pay. So structuring compensation in ways to control productivity and behavior and control over time. So monitoring and managing workers time. And I wanted to go through those because I think this is the argument that I'm hearing against treating employees as customers. And here's what I think the argument is. The definition of a customer for our purposes is someone who exchanges value with your enterprise business critical value and is free not to. And that freedom is important. The reason that so much of business is oriented toward providing value to revenue generating customers is because they provide revenue, which is a value that your company absolutely needs to survive. And they are free not to. And so because they are free not to, we really need to cater to their needs. Not all companies do cater to the needs of customers, but that's why customers are important. Well, we argue here on the show that employees are customers because they exchange business critical value with your company. It's not necessarily revenue, but it is still value that the company cannot survive without and are free not to. And so when somebody says employees can't be customers and we've had a few people on the show say this sort of directly, they're not customers because they're not free to leave. One of the people who said that was a high tech company and it was in a pretty small town in it probably wasn't a small town, it was like Alberta or something but in Canada. And there just wasn't that much tech work inside that region. And so I think that they might have been arguing on behalf of that, but I think that the argument goes employees are not free like customers are. And tell you my argument against that, then we can test it. My argument against it is employees are absolutely free. They can leave anytime they want. Most of us have to work somewhere but we don't have to work for you. And so that freedom is there. But there's this gap between Legal control and actual control, which is that a company may control my work in the law, but in practice, there's a huge gap between legal control and actual control. It's sort of like in California, weed was illegal. And the gap between the law and reality was so enormous that finally we just gave up on that law. And so that's my argument. That's my argument. That's as far as I can take it at this point.

[A]

Yeah, I mean, I have a couple thoughts on that. I guess if you're thinking about it from the corporate perspective, there's no legal reason you can't treat your employees like customers. All these master servant principles are things that just companies are claiming as a matter of entitlement. Like, this is what we are owed by our workers. We demand this. Give us what we are owed. There's no reason that you can't take a more egalitarian view towards people who are working for you. And you should. For all of the reasons that you talk about in this podcast. That's the first thing I would say.

[B]

That makes a lot of sense. And I suspect that many of these laws that corporations have argued on behalf of are defensive. It's not that they necessarily want to enforce the law.

[A]

They want.

[B]

They don't want the line at which they can be sued to be too far in favor of employees. So there's this playing defense to the letter of the law.

[A]

I would say a lot of why the master servant doctrine is around is a cultural idea. A cultural idea that companies have that management has about what is owed to them that they continue to advocate for in court. When you're in a dispute over, you know, some issue about why you fired someone. But also, you know, a lot of what I talk about in the book is about workplace practices. Those are largely just at the discretion of the company and how they want to organize the work. And if you want to organize the work to have a very high degree of control on surveillance and punishment, you're entitled to in the United States, but you don't have to. The master servant doctrine is mostly about corporate rights that they claim for themselves.

[B]

Not necessarily corporate practices. That's a really important point. And not necessarily even where those practices exist, that those practices are being adhered to by the people who work there. And so can you talk a little bit about the history of HR as it relates to discrimination?

[A]

Sure. There was one other thing I wanted to say about the employees as customers thing. I think even right now, I would say that some of your employees operate in roles that are pretty close to customers, and that is managers. Because managers make demands of the workers they expect to be served, and they expect a high level of service and make a lot of demands. That's not so different than what a customer would expect in terms of service.

[B]

That's interesting.

[A]

I mean, a lot of what the book is about is about management practices and managerial assumptions.

[B]

That's interesting. I'd never thought of it in that direction. I mean, it is bidirectional, but I hadn't thought about it to line managers in that way.

[A]

So HR really arose and came into its own following the passage of Title VII of the Civil Rights Act. In those years, as the marketing behind HR was that we'll help you comply with this law against discrimination and retaliation, because the law was really vague. And so they sort of filled in the gaps by saying, we'll help you come up with new policies to implement this. We will come up with new documentation. We'll formalize job descriptions for you. And in doing so, they were kind of adapting what had previously been used for how companies would interact with labor unions as labor unions became less powerful during those years.

[B]

And let me just fill in for international listeners. Title VII was a bill in the United States that was passed in 1964 as part of a broader Civil Rights Act. And it made discrimination based upon a number of different things. Illegal employment discrimination actually based on race. Right. At that time, I'm not sure it was already based on gender.

[A]

Title VII prohibits discrimination on the basis of race, sex, gender, religion, color and national origin. Before Title VII and the Civil Rights act, we had the Equal Pay act that actually predated that was a gender pay discrimination statute that predated Title VII. But Title 7 prohibits discrimination in hiring, firing, promotion and compensation. All those things together. So HR really grew up and came into its own as the main source of dispute resolution within a company following that law. There's two really big scholars who write about that, who do some really interesting work. There's Frank Dobbin at Harvard, wrote really interesting book on that, several books. And then Lauren Edelman, who unfortunately passed away. She was a professor sociologist from Berkeley who wrote a lot about the growth of hr. And I think Dobbin and also Edelman came to the belief that HR was doing a lot of window dressing, in their view. I mean, they came to be very cynical about it over time. In a way, we expect too much of hr. I feel like HR gets blamed for a lot of corporate decisions, when in fact HR is mostly just implementing what managers decide and they're trying to document which managers decide and make sure they're people are following process. But usually it's managers in the background who decide who to fire, who to hire, who to promote, how to compensate people. And they let HR take the flag for a lot of that.

[B]

That's been my experience. We had somebody on the show, Julie Turney, and she essentially provides therapy for HR people who are in hr. And she'll say she's not a therapist and that she's more of a career counselor. But really what she's dealing with is how often HR is caugh between what they feel is right, what management wants them to do, and the effect on employees. And then when they are asked to act on behalf of management toward employees, employees come to their house and threaten their families. And so they're in this incredibly difficult position between the decisions of management and their need to enact those decisions. And it causes moral injury and it causes intense burnout. So what you're saying is supported by a lot of the things that she said.

[A]

Yeah, And I think HR employees also have been a little bit on the wrong side of sexism in the workplace, which, you know, in more like scientific speak, that would be called occupational segregation. HR is dominated by mostly white women. And one of the things we know is that jobs that are predominated by women don't have as much status and come to lose status. So actually the labor management jobs in the 1930s, that was predominantly labor management relationship was white men. But as that role got displaced by hr, that department HR became less powerful within the organization. So that's also part of the longer historical story about why HR is a relatively disempowered part of the organization.

[B]

I have a bit of a story about that. The part about men before the 30s, which of course I wasn't there. I worked with a guy who was the company interface with unions in shipyards in Glasgow. And when you were the company facing interface with unions in shipbuilding, you were a tough guy, you were a physical enforcer. And that interaction. And you could see it in his eyes. He was the gentlest, nicest guy in the world. But you look in his eyes, you're like, I just don't want to go up against that guy. And so there was a way in which union busting had a physical presence that I could see in him. And so it's one of the reasons why I think it might have been dominated by men. Initially. It was a policing activity.

[A]

Yeah. And it was also a more important. I say that in quotes you know, back in the time where we had a much higher proportion of workers in unions, what we call labor density, labor union density, that job was more central to the business in the sense that everything could go off the rails if your workers went on strike. So back when unions were really powerful, by extension, the labor management department in the company was more powerful because it was kind of like a bet the company kind of role. So that's another also reason, structural reason, why that department used to be more powerful.

[B]

Yeah. Yeah, I can see that. Plus also would bet that the proportion of women in the workforce was just a lot smaller prior TO World War II in the United States. Yeah, you may have heard that. At the end of the show, I ask several questions of everybody, and one of the questions is, because we frame work as a product that companies build and sell, we ask product questions about work. And so one of them is, what do you, Liz, hire your job to do for you?

[A]

Oh, man, that's such a hard question. Let me just preface this by saying that I have literally the best job in the world. For every law professor that exists in the United States, there's, like, a hundred lawyers who would die for that job. There's, like, law firm partners who would line up and would take this job in a heartbeat. Every day. I get to teach students. They have so much energy. I get to do research that I want. I mean, it has so much autonomy. There's so much to be said for this job. I literally cannot think of a better job. So my husband died of cancer several years ago, some years ago. And I remember when he was sick, I would teach my class online, sometimes in person, and then I would go home and I would eat dinner with my kids, and then I would go to the hospital because he had, like, 10 rounds of chemo. And I would sleep in the hospital, and then I would get up the next day, and I would do the same thing. I had been very inanimate with his job, and I still am. But I remember at that point in my life, I remember thinking, like, of the things that I did today, probably the paid work that I did was the least important thing I'm doing. And I think that really changed my outlook of even the best job in the world. Like, it's still like a J, O, B. You're trading your time on this earth for that job, and you do it well, and you do it with care. But other things matter too. They matter as much. And I think as Americans, we just have invested way too much in these economic relationships and Neglected. Our communities, our neighbors, our churches, our local sports teams, our schools, everything. Those are just as important. And so the way I think about my job now, yes, I love this research. Obviously, I finished this book. But the things that people are going to remember me for is the students will remember me or the people in the workplace that I interact with every day. They remember that. So I want my students to know that I see them and that the time we spend together is important. It's important to me. It's important to them. But I also try to understand that this is still just a job. And it's one thing out of the other things that are important in life and in this world.

[B]

One of the things that Ian McKeown, who's been on the show twice, said is, I hire my job to know its place. Actually, the way he said it was. Human work knows its place. And his point was that it's not everything. It's interesting. You also passed through one of the things that many people say, which is, I hire my job to leave a legacy, but job competes with other things for each of the things that we hire it for. It competes with raising your kids for leaving a legacy. It competes with taking care of your husband for leaving a legacy. These are different things. And so part of it, knowing its place is knowing that it's not the only way to get the things that you can get elsewhere.

[A]

In a way, it's almost kind of the opposite of leaving a legacy. It's like, you know, just for my students, I'm here now. I'm here now, you're here now. We're both here, and we're spending this time together.

[B]

That's really important, what you just said.

[A]

I mean the same thing. When my husband was sick, it was like, he's sick. How long is he gonna last? I don't know, but he's here now. We're all here now.

[B]

It's the now. Yeah. Mm. This goes a little bit to the second question, which is, what does your job cost you?

[A]

Time, which I give freely and conscientiously. And my attention. I mean, the things that it costs me and the thing that I get out of it is the same thing. Everybody gives their time and their attention, and we all have, like, a finite amount of time. And so part of valuing workers is valuing everybody's time, regardless of the wage that they're being paid and treating that time as valuable and not wasting it or treating it like it doesn't matter or that their attention or their energy or their sense of well being isn't just being impaired based on our sense of how economically valuable their time is.

[B]

I had David Norton on the show recently and he's an experience designer, and he says that different kinds of services have different measures of how they use your time. And so a really good service saves you time. So it's time well saved. A really good experience offering is time well spent. And a really good transformational offering is time well invested. And so recognizing that different parts of work require a different treatment, which is that if it's a service, if it's something like payroll, payroll should not take any time for you to get. It should not be something you have to pay attention to. It should be time well saved. Getting benefits should be time well saved. It should just be easy and transparent. Being at work and interacting with friends, for instance, that should be time well spent. And learning through work is time well invested. And self transformation is time well invested. So it's a really interesting thing that you said about how it costs you time and attention.

[A]

I keep thinking about this example in the book. You know how Amazon has this reputation for being the most efficient company ever and they maximize everything with their workers and they have to meet these quotas and work super fast. But when it comes to standing at a security screening to leave the building, turns out you don't get paid for that because it doesn't count as working time under the law, under something called the Portal to Portal Act. And there was a lawsuit that went to the Supreme Court, and the Supreme Court says, no, you don't have to pay for that. So as a result, Amazon, although this was an Amazon subcontractor, who knows the most efficient company in the world, has no incentive to treat that worker time as precious. So those workers who are completely managed to the second every second of the day, they stand in line for 25 minutes each day to go through a security screening to make sure they're not stealing Amazon's product. And you're telling me Amazon can't figure out any way to make that slightly more efficient? I just find that offensive.

[B]

Well, it's true for commutes, too, which is that one of the things about commutes is that for companies, they're externalities. And so there's not very much incentive. Although I will say companies I work for were very conscientious about commutes, and it's not their fault that I lived an hour away. This has been absolutely fascinating. This whole part of work which is so embedded in the way we experience work, that it's transparent, it's so ambient, it's so ubiquitous that we don't notice it when it's a part of our work. And we assume that that's just what work is as opposed to realizing that there's some choice there. So I really appreciate you coming on the show to talk about it.

[A]

Well, thank you so much for having me.

[B]

Where can people learn more about you and your book?

[A]

If you search for the name of the book, you can find it. I mean, LizTippet.com will send you to it, but yeah, if you just look up the name of the book, it's very findable.

[B]

And that's T, I, P, P, E.

[A]

T, T. Yes, two P's and two T's. Thank you for asking.

[B]

Two T's and two T's. And it's called the Master Servant Doctrine, so definitely check it out. It's really interesting to watch all those moments in legislative history when things went one way or another and so it's a really interesting read.

[A]

Thank you so much.

[B]

Thanks for joining me for another episode of Work for Humans. If you enjoyed this episode, please give us a five star rating. Wherever you listen to podcasts and share the show with one person you think would get value from it, believe it or not, this really helps us grow the show and reach more people who want to build the kind of work that people really want. As always, thank you to my producer, Jason names at 9th Path Audio for his insights into content and his high standard for quality. Final note, the opinions shared here are my own and not the views of Google or Cisco Systems. Thanks again for listening. See you next time.