December 23rd, 2025
A DOCTRINE AFFECTING DOCTORS, TOO, a book review by Jim Vogele
THE MASTER-SERVANT DOCTRINE How Old Legal Rules Haunt the Modern Workplace, by Elizabeth Chika Tippett (Pub: University of California Press) (2025) ISBN 9780520382329 paperback
A book review by Jim Vogele
Elizabeth Chika Tippett, currently a professor at the University of Oregon Law School, has published an excellent new book — THE MASTER SERVANT DOCTRINE How Old Legal Rules Haunt the Modern Workplace – a scholarly work focused on employment law’s “master-servant doctrine.” Tippett’s labors have produced a thoughtful and useful discussion of this historical doctrine and traces its continuing impact in the modern workplace.
A NOTE ABOUT NOTES
On a preliminary note — pun intended — it would be an understatement to say that this book is heavily supported by research and authority. As I was reading the Introduction, I wanted to check the citation for a proposition made on page 6. The associated endnote number was already 66. This breathless pace of citation continues throughout – there are over 1,200 endnotes in this 164-page book (the Epilogue has 2 endnotes!).
I will admit here to a lawyer’s fondness for endnotes and footnotes. In legal briefing, however, footnotes are generally used to say more of the things we want to say rather than to provide citations to our authority; but some lawyers will place procedural history, or secondary authority, or distinguish contrary authority and the like in footnotes. Legal-writing guru and editor of BLACK’S LAW DICTIONARY, Bryan A. Garner, argued for “citational footnotes” in his 1996 book, THE WINNING BRIEF, even urging lawyers to footnote all their authority. In 2001, The New York Times covered the controversy over Garner’s proposition. https://www.nytimes.com/2001/07/08/us/legal-citations-on-trial-in-innovation-v-tradition.html
Suffice it to say that citations are like the bricks a brick-layer uses to build a traditional, two-layer brick home and Tippett’s work is well constructed.
OVERVIEW
In her Introduction, Professor Tippett explains that her intention is to expand upon existing scholarship with a more comprehensive discussion, as well as to add a specific consideration of slavery as its own type of master-servant relationship. As Tippett explains, her work surveys the historical development and scholarship around the master-servant doctrine (which originated in England as did most of our common law fundamentals), as well as the continued usage of the terms themselves alongside more modern terminology of “employer” and “employee” or sometimes “principal” and “agent,” to describe common workplace relations.
Tippett’s book addresses the still vital vestiges of the doctrine in modern employment law in three major parts — The Right to Control, The Right to Govern, and The Duty of Support – analyzing the employer’s substantial power to control employees, as well as some legislative limitations on the employer’s right to govern the workplace, and concluding with several chapters discussing how workplace benefits are used in furtherance of employer control in the “master-servant system” (this system, Tippett says, is a feature of employment relations that is both convenient to and facilitated by federal and state governments in America). Tippett concludes her book with proposed policy reforms that, she suggests, might refashion the control dynamic in the workplace more favorably to employees.
THE EMPLOYMENT-AT-WILL DOCTRINE
Part 1 of THE MASTER-SERVANT DOCTRINE is comprised of 4 chapters addressing “Physical Control,” “Termination,” “Pay,” and “Time Management.” While all aspects of control are of interest to employment lawyers, Chapter 2, addressing termination, is of particular relevance to the current chapter of my own law practice, focusing on physician employment contracts. The engagement and termination (disengagement) of workers is, in any event, one of the sensible starting points for any discussion of employment relationships; and the development of the at-will employment principle in 19th century courts and legal treatises is of continued relevance and interest to modern employment law practitioners. Tippett’s book observes that some scholars trace the rise of at-will employment to capitalism itself: “Legal scholar Jay Feinman likewise attributes the rise of the at-will employment doctrine to capitalism, a method for corporate employers to expand their power and influence over workers. However, legal scholar Andrew Morris conducted an empirical analysis of the timing associated with adoption of the at-will doctrine and found that states that industrialized early did not necessarily adopt the at-will doctrine earlier than others.”
As Tippett notes, the evolution of the at-will doctrine varied with the willingness of courts to either (a) intervene in the relationships between workers and employers or (b) defer to the employer’s judgment in matters of the engagement and termination of workers. These developments, which were intermittent and at times inconsistent, loosely tracked the development and application of contract law in the workplace.
Tippett points out that for a period of time in the 20th century in California, the at-will employment doctrine was eroding, with courts at times willing to recognize an exception to the ‘free will’ doctrine for long-term employees who had received promises or other indicia of secure if not permanent employment:
“One hundred years later, California contract law drifted, ever slightly, toward contract law resembling that intermediate phase. Although the at-will principle had long been codified in a California statute, a series of cases in the 1980s and 1990s recognized an exception to at-will employment that empowered courts to consider promises and assurances made by employers as potential contracts.”
In short, some American courts were willing to find an implied contract for continued employment absent good cause to terminate the relationship. The indicia that an employer intended to extend in essence lifetime employment to an employee could be based on written assurances (such as representations made in handbooks or offer letters or the like) as well as on oral statements (comments like “you’ll always have a job with us”) or on actions such as discouraging an employee from pursuing other opportunities or encouraging purchase of a home within an easy commute to the workplace. And of course crafty lawyers for employees exploited supposedly well-meaning human resources concepts (which Tippett also discusses in Chapter 7) such as “progressive discipline,” using the reasoning that: Why would progressive discipline be necessary, if the employee could be terminated at will? Even the concept of “discipline” of course invokes the master-servant milieu.
But Tippett notes that this trend to impose requirements of just cause for termination largely came to an end in California with the Guz v. Bechtel case. As Tippett notes, “Guz v. Bechtel remains today the most frequently cited case relating to the at-will presumption. As such, the employer’s authority to control the workplace, through the looming threat of termination – for any reason, or for no reason at all – remains intact.” Tippett also notes that as of today, Montana is the only state that has not fully adopted the at-will doctrine (this, because of Montana’s Wrongful Discharge from Employment Act).
On a personal note, I entered the arena of California employment law during the heady period when Foley v. Larkin was being interpreted and Guz had just been filed in the trial court. In those days it seemed as if the California Courts of Appeal and California Supreme Court were issuing important decisions in the employment law field several times a week; and lawyers representing employees were still pressing arguments for implied contracts for continued employment, as well as arguing for extension of the public policy wrongful termination tort (along with the potential for tort damages, as opposed to purely contractual economic damages, which was a significant driver of the litigation in these cases). In this same period, I was also involved in several cases in the early 1990s that were on the cutting edge of using Rule 23 class actions to obtain redress for Labor Code and IWC Wage Order violations. We had very little precedent to look to in those cases. The FLSA’s opt-in collective action mechanism had been in effect for decades, but the participation difference between opt-in collective actions and opt-out Rule 23 class actions is enormous. In the first such case that I was involved in, just as happened in Mt. Clemens Pottery as Tippett notes, the issues were so complex that the federal judge appointed a special master to handle many disputes in discovery and litigation of the case. We spent many hours with the special master, and the hundreds of employees we represented, who had been short-changed on overtime, ultimately prevailed at trial before the judge. Thereafter, following our jury verdict in another case, Bell v. Farmers Ins., an even larger case involving thousands of insurance adjusters who had been unlawfully deprived of overtime pay, the wage and hour class action floodgates seemed to be decisively nudged open (and have more or less remained that way for the past 20+ years in California).
Returning to Tippett’s analysis in THE MASTER-SERVANT DOCTRINE, the book repeatedly emphasizes how the at-will doctrine invests employers with power to control relationships with employees:
“In the late nineteenth century, courts conferred power over termination to the employer through the employment at-will doctrine. In the early twentieth century, courts likewise sought to preserve employer power over hours and wages by declaring wage and hour laws unconstitutional. The passage of the FLSA in 1938 represented a meaningful constraint on employer discretion, but it also solidified workplace hierarchies and increased employer incentives to engage in managerial surveillance and control over hourly employees.”
When it comes to Washington, Oregon, and California physician contracts, as we often discuss in physician contract reviews, you will note that the at-will doctrine is a two-way street. Yes, the employer can unilaterally trigger at-will termination of your contract, but, just as an employer can pull the trigger on an at-will employment termination, so too can the employee. Employed physicians are typically free to resign whenever they like — upon providing proper notice pursuant to the physician employment contract’s termination without cause / at will provision. Of course, providing adequate notice, prior to the final date of employment under Montana, Washington, Oregon, and California physician contracts, is a prerequisite because physicians must avoid patient abandonment, i.e. must provide patients with sufficient notice and a timely opportunity to find another healthcare provider, as well as information on requesting medical records. Thus, physicians typically cannot, and should not, resign ‘on the spot’ so to speak. The most typical contractual notice of termination period in physician employment contracts is 90 days, but can be 30, 60, 120 or even 180 days.
Note that, depending upon your specific contract language, we may discuss the possibility of edits to the contract that could provide the physician with some protection against repayment obligations in the event of an employer decision to terminate at will. Details need to be addressed with respect to your specific contract language, but this issue is something to be aware of regarding your physician employment contracts, which often include signing bonuses, relocation reimbursement, educational loan assistance, and other recruitment or retention incentives.
In sum, while the at-will employment doctrine allows an employer to end a relationship at any time (with notice or pay in lieu of notice through the notice of termination date in many physician contracts), the at-will employment provision also provides leverage to the employed physician to push back against unfavorable changes in the terms and conditions of employment. While an employer can always propose prospective changes in compensation, benefits, terms and conditions (and most physician employment contracts contain language specifically reserving that right to the employer), physicians can decline to accept the proposal, by invoking the at-will employment provision.
PRECEDENT
THE MASTER-SERVANT DOCTRINE addresses several important judicial decisions in the field of employment law. One of those — Clackamas Gastroenterology P.C. v. Wells, 538 U.S. 440 (2003) — originated in Oregon and involves physicians. In that matter, an employee of a medical practice sued the employer under the Americans with Disabilities Act (“ADA”). The ADA, however, applies only to employers of 15 or more employees. The question was whether four shareholder physicians of a professional corporation should be considered employees? If they were, the ADA would apply. The U.S. Supreme Court articulated the standard for determining employer status in this context and remanded for consideration of the factual record consistent with this standard (the Court held that a 6-factor analysis applies, but that the “right to control” is the primary consideration). As of the end of 2025, the Clackamas Gastroenterology decision has been cited over 500 times by other courts, including just a month ago in a decision by the 9th Circuit Court of Appeals addressing the same issue the U.S. Supreme Court considered in 2003 – whether a professional workplace (a law firm in the most recent matter) had 15 employees and thus was subject to the ADA.*
*Parenthetically here, note that state disability anti-discrimination laws have lesser employee threshholds – e.g. Oregon requires just 6 employees for its disability discrimination and accommodation laws to apply, while California requires just 5 employees for coverage under Fair Employment and Housing Act (“FEHA”).
Tippett also discusses Anderson v. Mt. Clemens Pottery, a 1946 U.S. Supreme Court case addressed in Chapter 4, which is entitled “Time Management.” As an attorney who has litigated many wage and hour cases, I can say that Mt. Clemens Pottery is canonical. I’ve cited it primarily on the issue of record-keeping, when employers have not maintained adequate or any records of time worked by their employees. While employers will often argue that the employee has not proven unpaid hours worked, it is the employer’s statutory duty to maintain records of hours worked; and as the U.S. Supreme Court held in Mt. Clemens Pottery, once the employee provides evidence or testimony of having worked uncompensated hours, the burden is on the employer to rebut a reasonable estimate of hours worked. As Tippett notes, the workers in that case ultimately recovered nothing after remand of the case to the trial court. The Solicitor General weighed in on the side of the employer and the trial court ruled in favor of the employer.
Win some, lose some.
Tippett also discusses McDonnell Douglas v. Green, the famous case that established the burden-shifting analysis applicable to discrimination claims under Title VII, as well as Meritor Savings v. Vinson, in which the U.S. Supreme Court first recognized harassment in the form of a hostile work environment to be actionable under Title VII’s proscription against discrimination (sexual harassment is a form of sex discrimination under the statute, i.e. while discrimination may also involve harassment, harassment is always a form of discrimination under the law). And of course, as every employment attorney knows, the cases of Ellerth and Faragher ushered in affirmative defenses that ultimately have proven to be quite employer-friendly.
Enhancing the stories Tippett relates throughout her book, she was able to conduct interviews with parties and lawyers in some of the important cases she addresses (and she also constructively uses deposition and oral argument transcripts). For example, truck driver Dominic Oliveira, named plaintiff in New Prime v. Oliveira, 139 S.Ct. 532 (2019), used his portion ($30,000) of a $28 million settlement “to buy a 2016 Ram Revel pickup, make a down payment on a Harley Davidson motorcycle, and pay off the camper he was living in ‘so he would have a place to live that wouldn’t be taken from him.’”
LEGISLATION’S ROLE IN EMPLOYMENT RELATIONS
While, in Tippett’s view, courts have largely deferred to employer decisions when it comes to the hiring, management, and termination of employees, she also points out that Congress has had a say in these matters as well. For example, the Fair Labor Standards Act of 1938 not only prohibited child labor but also established a minimum wage and imposed a premium pay requirement for hours worked over 40 per week.
Of note regarding Montana, Oregon, Washington, and California physician contracts, however, are the exemptions that are allowed to FLSA coverage; one of these is known as the white collar or professional employee exemption, which applies to physicians, lawyers and some other professionals. As of today, the so-called white collar exemptions include: managerial, administrative, learned and creative professionals, skilled computer professionals, outside salespeople, and highly-compensated employees. The professional “exemption” means that, if you are a licensed physician, you will not be able to make a claim against your employer for time-and-a-half for work over 40 hours per week. However, extra work is often compensable in practice by means of productivity compensation, or additional shift or call stipends and the like. But licensed physicians are commonly considered “exempt” employees under the FLSA.
From the very beginning, however, there were other key FLSA exemptions for agricultural and domestic employees, which legal scholars and historians have traced to racial biases at the time of the Act’s passage, when agricultural and domestic laborers were often Black and Hispanic (minimum wage protections were later extended to agricultural employees, but overtime compensation requirements were not so extended, and minimum wage protections were finally also extended to domestic workers). The history of opposition to providing basic wage and hour protections to groups of workers in positions most often held by Black, Latino and female employees is an obvious scar on the history of employment law in the United States. And as mentioned earlier, Tippett’s work is to be commended for its careful attention to these issues and for inclusion of slavery as an important part of the history of master servant doctrine.
MATTERS OF LEAVE
Throughout THE MASTER-SERVANT DOCTRINE, Professor Tippett surveys commonly understood facets of modern workplaces, such as workers compensation systems that were widely adopted by states in the early 20th century as a means of compensating workers for industrial injuries, but which also served to insulate employers from the less constrained and predictable prospects of litigating tort liability. Tippett accurately points out the differences between the workers compensation system, which “operates through incentives rather than mandates,” and OSHA which relies largely upon the latter (albeit with the prospect of minimal fines).
In her chapter 10 on “Policy Interventions,” Professor Tippett suggests “Untether[ing] … Basic Social Welfare Programs from the Employment Relationship.” In this part of her book, Professor Tippett addresses paid and unpaid leave, using California as an example, with a suggestion that such state-administered leave laws be expanded even further. Having discussed California physician contracts with numerous practitioners who were grappling with, or were expecting to grapple with, the issue of needing extended leave time for childbirth and bonding, I can attest that this is an area of employment relations that is both extremely important yet also often difficult to navigate.
Although physicians are typically hard-working by nature, the topic of paid time off and/or unpaid time off or leave continue to be extremely important issues. I will say that from my experience, many young physicians accept it as a reality that they will work hard (which is a pragmatic and realistic attitude). Equally so, however, I can note that even for highly-paid professionals, the process of extending leave to start or add to a family can be extremely stressful. Like all employees, physicians are sometimes placed in the situation where the timing of disclosure is a judgment call, with care and caution necessarily given to minimize the risk of adverse consequences on their employment status. An employee’s pregnancy, or that of the employee’s spouse, can be challenging enough without the added stress of juggling the timing requirements of leave laws with employer expectations and needs (and to be sure, employers have a legitimate interest in ensuring they have an active workforce to meet the needs of patients and customers, as well as attempting to ensure fairness to all employees). But starting a family is and should be a wonderful development and to the extent government and employers can reduce stress around this experience that should be heartily encouraged.
Tippett’s suggestion to uncouple to some extent social welfare and employer-employee relations is at its heart a debate that will be with us as long as we have employment and which involves key considerations in structuring a just, fair, and healthy society.
Overall, the policy recommendations in “The Master Servant Doctrine” are ambitious (as is the nature of policy recommendations) and nationwide traction will be a challenge (e.g. large-scale reparations for slavery, no matter how much merit and fairness there would be in same). But ambitious policy proposals are a good starting place and Tippett’s are meritorious and illustrative. For example, Tippett’s discussion of the impact for better and/or worse of Obamacare on the provision of healthcare benefits to workers is insightful and elucidates how government can encourage or discourage the continued entrenchment of the less commendable aspects of the master servant doctrine in the world of employment.
CONCLUSION
Tippett practiced law in a firm for a period of time, and I should perhaps note that she graduated from Harvard Law School, as did I. But she is now a law professor, and, as I read THE MASTER-SERVANT DOCTRINE, I kept an eye out for any indications that Professor Tippett lacked a grasp on the practical issues facing employees (and independent contractors) in the real-world workplace. Would her perspective as an academic and scholar perhaps lead to erroneous assumptions or factual or legal inaccuracies?
By the latter part of the book, I had relaxed my ‘vigilance’ because I simply wasn’t seeing inaccuracies or indicia that the author lacked an understanding of employment law as it is practiced in and out of courts. Tippett has not only done her academic research but she has paid close attention to key judicial decisions and consulted with many of the employees and lawyers involved in the cases she discusses. In short, she displays an understanding of both the pragmatic and theoretical underpinnings of employment law as practiced by attorneys on both the plaintiff and defense side. A final note on research here — the University of Oregon website states that: “[THE MASTER-SERVANT DOCTRINE is t]he culmination of seven years of research, [and] the book reveals how modern employment law has been tainted by a centuries-old legal doctrine that gives employers tremendous power over workers.”
https://law.uoregon.edu/directory/faculty/all/tippett
By way of any critique at all, I note that Tippett makes only passing reference and a citation to scholarship on intellectual property (think of the “work for hire” doctrine) and, while she refers to employee mobility and “job lock” in terms of health care and preexisting conditions, she does not elaborate on the noncompete restrictive covenants that plague so many American employees (albeit to a greater extent professional employees). Those issues are of primary concern in terms of employer control in the modern workplace. Alas, one book can contain only so much and Tippett’s focus seems overall very well-placed in THE MASTER-SERVANT DOCTRINE.
Speaking of professional employees, Tippett’s work of course reflects an awareness of the advantages that professional employees have in terms of working conditions and benefits. Apropos of physician employment contracts, she notes generally regarding professional employees in a section of her discussion of union representation, that individual workers might still benefit from some aspects of union representation: “Such representation is not significantly different than what executives already enjoy in the context of their negotiations at the outset of employment or the kind of bargaining leverage that professional employees enjoy at the start of an employment relationship.”
I’ve recommended that physicians might consider reading many of the books I’ve reviewed on this website, because the books relate directly to the working lives of physicians. Physicians with a casual interest in employment law may or may not find the detailed discussion in THE MASTER-SERVANT DOCTRINE to be worth the candle. But when the work is considered on its own pitch – in the field of employment law scholarship and legal history — it is a meticulous and thoughtful work that I would recommend to anyone with an interest in the power dynamics among individuals, corporations, and governments. THE MASTER-SERVANT DOCTRINE is an important addition to the scholarship of the American workplace.
