The Restatement of Agency scope of employment test is the framework courts use to decide whether an employer is vicariously liable for harm caused by a worker on the job. Two versions are in wide use. The Restatement (Second) of Agency Section 228 lays out a four-part checklist. The Restatement (Third) of Agency Section 7.07 replaces that checklist with a single, broader question about assigned work and employer control. Which version applies depends on the jurisdiction, but both are asking the same thing: was the worker doing something connected enough to the job that the business should answer for it?
The Four Prongs of the Second Restatement
Section 228 of the Restatement (Second) treats scope of employment as a checklist. All four conditions must be met. If any one of them fails, the employer is not vicariously liable under respondeat superior.1Open Casebook. Restatement (Second) of Agency on Respondeat Superior
- Kind of work employed to perform. The conduct has to be the same general type of activity the person was hired to do. A repair technician fixing equipment satisfies this prong. The same technician selling unauthorized products on the side does not.
- Authorized time and space. The act must happen substantially within the time and geographic limits the employer set. An office worker at their desk during business hours fits. A warehouse employee involved in an incident across town on a day off does not.
- Purpose to serve the employer. The employee’s conduct must be motivated, at least in part, by an intent to benefit the employer’s business. A delivery driver speeding to meet a company deadline is serving that purpose. A driver taking the company van to run a personal errand is not.
- Force not unexpectable. When the employee intentionally uses physical force, that force falls within scope only if the employer could reasonably anticipate it in the role. A security guard restraining a shoplifter is foreseeable. A data entry clerk assaulting a coworker is not.
Courts work through these in order, and a plaintiff who cannot clear each of the applicable prongs loses the vicarious liability claim against the employer.
When the Force Prong Applies
The fourth prong only comes into play when the employee deliberately applied physical force. In negligence cases, courts evaluate only the first three prongs. That distinction matters because most auto accident and premises liability claims involve negligent conduct rather than intentional contact, so the force question rarely surfaces in routine injury litigation.
The Section 229 Factors for Close Cases
Section 228 provides the framework, and in clear cases that is all a court needs. When the facts are ambiguous, courts turn to Section 229, which lists ten factors for deciding whether conduct that was not explicitly authorized still falls close enough to the job to count. These factors include whether the act is commonly done by workers in that role, the time, place, and purpose of the act, whether the employer had reason to expect it, how far the act departed from the normal way of getting the job done, and whether the employer supplied the tools or equipment involved.1Open Casebook. Restatement (Second) of Agency on Respondeat Superior
Two factors tend to carry outsized weight. First, courts ask whether the employer furnished the instrument that caused the harm. When a company provides a vehicle, specialized tools, or equipment, that cuts strongly toward finding the employee was acting within scope. Second, courts look at whether the act was seriously criminal. A worker who commits a violent felony during what otherwise looks like job activity faces a strong argument that the conduct fell outside the scope of employment, even when the other factors point the other way.
These factors matter most in the gray zone. When the four prongs of Section 228 line up clearly in one direction, courts rarely need Section 229. When a worker did something adjacent to their duties but not squarely within them, the ten factors can tip the balance.
The Simpler Section 7.07 Standard in the Third Restatement
The Restatement (Third) of Agency Section 7.07 simplifies the analysis. Instead of four separate prongs, it asks a single core question: was the employee performing work assigned by the employer, or engaging in conduct subject to the employer’s control? If yes, the act is within scope. If the employee was instead pursuing an independent course of conduct not intended to serve any purpose of the employer, the employer is not vicariously liable.2Open Casebook. Restatement of Agency (Third) Excerpts
The Third Restatement dropped the explicit time-and-space requirement and the motivation inquiry from the older test. Modern work environments often don’t fit neatly into fixed hours and fixed locations. A salesperson working from a car, a consultant moving between client sites, an employee answering emails from home at 10 p.m. — the older framework strained to handle these settings. The Third Restatement’s focus on control and assigned work handles them more directly.
Section 7.07 also updated the terminology. The older Restatement used “master” and “servant,” language borrowed from centuries-old English common law. The Third Restatement uses “employer” and “employee,” and defines an employee as an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work.2Open Casebook. Restatement of Agency (Third) Excerpts
Which version a court applies depends on the jurisdiction. Many states have continued to work from Section 228 and its four prongs because their case law was built on that framework. Others have moved toward the Third Restatement’s broader control-based inquiry. The practical outcomes often converge, but the analytical path differs.
Common Fact Patterns That Decide Scope
The test does its real work in a handful of recurring scenarios. Each one translates the abstract prongs into a question courts have answered many times before.
Frolic and Detour
Workers routinely deviate from their assigned tasks. The common law separates minor deviations from serious ones, and the line decides who pays.
A detour is a minor, temporary departure from work duties that doesn’t sever the employment connection. A delivery driver who pulls through a drive-through for a quick meal, or takes an alternate street to avoid construction, is still broadly serving the employer’s purpose of completing deliveries. Courts treat these small deviations as a normal part of any workday. An accident during a detour generally leaves the employer on the hook.
A frolic is something fundamentally different: a substantial departure from work for purely personal reasons. The classic example is a driver who veers miles off the assigned route to visit a friend or handle personal business. At that point the worker has effectively abandoned the job, and the employer’s connection to whatever happens next is too thin to support liability. Courts weigh the geographic deviation, the time consumed, whether the worker intended to return to work, and whether the deviation is the kind of side trip workers in that role commonly make.
The harder question is re-entry. Once a worker finishes a frolic and heads back toward the job, at some point they re-enter the scope of employment. The employer becomes vicariously liable again once the worker is reasonably near the authorized route or location and is acting with an intent to serve the business. Identifying that precise moment generates substantial litigation.
Dual Purpose Trips
Some trips serve both business and personal purposes at once. The foundational test, articulated by Judge Cardozo in Marks’ Dependents v. Gray, asks whether the work created a necessity for the travel. If the trip would have been made even if the personal errand were canceled, the travel counts as within scope. If the trip would have happened anyway for personal reasons and would only have been canceled if the personal purpose fell through, the travel is personal.
A salesperson driving to a client meeting who drops off dry cleaning along the way is on a business trip with a personal side stop. The employer connection holds. A worker driving to a family reunion who happens to call a client en route is on a personal trip, and the incidental business contact does not convert it into work-related travel.
The Coming and Going Rule
An employee’s ordinary commute to and from work falls outside the scope of employment. This is the coming and going rule, and it means employers are generally not liable for accidents workers cause on the way in or on the way home. Commuting serves the worker’s personal purpose of getting to the paycheck, not the business.
Several well-established exceptions pull a surprising number of cases back inside the rule:
- Required vehicle. When an employer requires a worker to drive their personal car to work so the vehicle is available for business use during the day, the commute itself becomes part of the job. The requirement can be explicit or implied.
- Special errand. When an employer sends a worker on a task that takes them away from their normal workplace or route, even outside regular hours, the travel is within scope. An employee asked to pick up supplies on the way in, or drop off a package on the way home, is performing a special errand.
- Employer-paid travel. When the employer reimburses travel expenses or pays wages during travel time, courts often find the employer has involved itself in the transportation enough to pull the commute into scope.
These exceptions catch situations that look superficially like commuting but functionally serve the employer. A plumber driving a company truck stocked with tools and parts to each job site all day is not commuting in any meaningful sense, and the coming and going rule won’t shield the employer if that plumber causes an accident on the way to the first appointment.
Intentional Acts Within Scope
Employers can be vicariously liable even when an employee commits an intentional tort or a crime, provided the misconduct has a sufficient connection to the job. Under the Restatement (Second), the analysis asks whether the act was motivated at least in part by a purpose to serve the employer. A bouncer who uses excessive force removing a patron, or a collections agent who threatens a debtor, may still be acting within scope because the underlying goal was to advance the business.1Open Casebook. Restatement (Second) of Agency on Respondeat Superior
The nature of the job sets what counts as foreseeable under the force prong. Security personnel, debt collectors, repossession agents, and bar staff all work in roles where physical confrontation is a predictable occupational hazard. Employers who hire for these positions carry a correspondingly higher risk for intentional acts by their workers. A software developer who punches a coworker during a code review is acting so far outside the expected range of the job that the employer almost certainly escapes vicarious liability.
Acts motivated purely by personal animosity or self-interest fall outside scope. An employee who assaults a coworker over a personal grudge, or steals inventory for personal profit, is pursuing their own agenda. Courts draw this line rigorously. Without it, every employer would effectively insure against any bad act committed by anyone on the payroll.
Who Must Prove Scope of Employment
The plaintiff carries the burden of proving the employee was acting within scope at the time of the incident. Showing that the person who caused the harm happened to be employed by the defendant is not enough. The plaintiff must connect the conduct to the job.
Whether the scope question goes to a jury or gets decided by the judge depends on how clear the facts are. When the underlying facts are disputed or could reasonably be read more than one way, scope of employment is treated as a question of fact for the jury. When the facts are undisputed and point clearly in one direction, the judge can resolve the issue as a matter of law. Most cases land in the gray zone, and the jury decides.
This is why documentation drives these cases. Employers who maintain clear job descriptions, defined work hours, assigned routes, and written policies on personal use of company vehicles are building a record that helps them argue an employee was off-duty or off-task. Plaintiffs benefit from GPS records, dispatch logs, and time-stamped communications showing the employee was performing work-related activities when the incident occurred. The side with the better records usually wins the scope argument.
When the Scope Test Doesn’t Decide the Case
The scope of employment analysis assumes the worker is an employee in the first place. Respondeat superior generally applies only to employees, not independent contractors, and the dividing line turns on how much control the hiring party exercises over how the work gets done. If the worker is an independent contractor, the scope test usually never comes up, though narrow exceptions exist for non-delegable duties such as inherently dangerous activities and the obligation to keep premises open to the public reasonably safe.3Legal Information Institute. Independent Contractor
A failed scope-of-employment claim also doesn’t necessarily end the case against the employer. Negligent hiring, retention, and supervision are separate causes of action that depend on the employer’s own fault rather than vicarious liability, and they can succeed even when the harmful act fell outside the scope of employment. Apparent authority and estoppel under the Restatement (Third) can also impose liability on a principal when a third party reasonably believed the actor was authorized, based on something the principal said or did.2Open Casebook. Restatement of Agency (Third) Excerpts These doctrines sit alongside the scope test rather than inside it, and a full liability analysis against an employer often has to run through each of them.