Employment as Fiduciary Relationship
Citation: 105 Geo L.J. (2017)
Under traditional agency law doctrine, employees are agents of their employers and owe an agent’s concomitant fiduciary duties. Employers, in turn, are merely principals and have negligible fiduciary obligations. A new wave of thinking has unsettled this approach by concluding that only high-level employees have fiduciary responsibilities to their employers. Taking this controversy as a starting point, this Article reconceives the employment relationship as a mutual fiduciary relationship in which both employers and employees are fiduciaries of one another. Though current law does not hold employers to be fiduciaries of their employees, employers have long had significant statutory and common law responsibilities toward their employees that reflect a fiduciary character. Looking to these commitments as well as to research on the theory of the firm, this Article argues that employers are fiduciaries and must refrain from opportunism, especially when employees have no voice in governance. However, in an organizational setting where employees genuinely participate in governing the firm, the parties’ reciprocal fiduciary duties should be recalibrated to require a balanced set of obligations.