agent vs employee - Posted by John Merchant
Posted by John Merchant on August 12, 2003 at 22:02:20:
Agent can always be sued, along with his principal, and I always found it a good idea to sue both of them when the agent personally did something that injured my client. Of course I really wanted BIG Co., and their insurance coverage & assets rather than Al Agent and his iffy assets.
But if I had just succeeded in getting a J against Agent, I could NOT have then attached any assets of the corp. Because agent’s actions don’t bind his principal.
Whereas with an employee, if I could nail him, while proving he WAS a corp employee, in the course and scope of his emloyer’s business, under the law of “respondeat superior” I would then have had the corp as well, as he was, in effect, the corp “alter ego”. and his acts were corp acts. All of which I alleged in my lawsuit which of course was against both employee and the corp.
When such a suit is filed, the plaintiff usually does NOT know whether you are agent or employee, so he alleges employee, and works to prove that.
On the Pro Se problem, there’s an easy way around that stumbling block-have the corp. give you a .0001% interest in the property.
Then you file suit for yourself, pro se, and incidentally you name the other owner too-the corp, which owns the other 99%. So any J you get would belong .0001% to you, 99.0009% to the corp.
The corp would not even need to appear, unless they were countersued, which on the typical LL/T deal, would NOT occur.
This should be done by corp. resolution and bylaws, and the corp could simultaneously state clearly therein, that you do NOT have the right to obligate the corp in any way for anything not previously authorized, in writing by the corp, and that under NO circumstances, could you be construed to be an employee. And clearly stating that you have no certain hours of work, can come and go as you want, are NOT under the control of the corp in any way, and you are not being paid a salary as you are NOT an employee.