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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 the
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