- 8 - element of control the “principal guidepost”). So, in the absence of a different definition in either the statute or the regulation, we think that the answer to the question “Which workers were Lykins Inc.’s employees?” should be found by applying common law principles. At common law, the key criterion is one of control--an employer is one with the right to control the manner and means by which an employee does his chores. See Rev. Rul. 87-41, 1987-1 C.B. 296. And the common law recognizes that “a person may be the servant of two masters * * * at one time as to one act, if the service to one does not involve the abandonment of the service to the other.” 2 Restatement Agency 2d, sec. 226 (1958). There is even an “inference” (by which the Restatement seems to mean a rebuttable presumption) that “the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.” Id. sec. 227, comment b. This presumption of continued employment and this recognition that in law--if not in life, see Matthew 6:24--a man can serve two masters, speak directly to this case. Lykins’s testimony (which we specifically find credible on this point) and the exhibits he introduced, reinforce rather than rebut thePage: Previous 1 2 3 4 5 6 7 8 9 10 Next
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