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The time has come for the courts to call a ceasefire in their cause of action war against the employer. In the past three decades, virtually every conceivable theory of liability has been espoused by the plaintiffs' bar and explored by the courts. If the courts have not seen fit to create the cause of action yet, it may be time to say enough just for the sake of creating some stability within the field of employment rights.
We must be particularly wary of creating new causes of action within the tort common law, where there is not even a pretense of having to find an agreement between the parties. The rights existing under current contract law provide more than enough remedies for correcting perceived wrongful employer behavior. The argument against use of tort law in the employment rights setting was recently cogently made in (of all places) a California Supreme Court decision, Foley v. Interactive Data Corp. [51] In Foley, plaintiff attempted to establish a tort cause of action in the employment setting for breach of the implied covenant of good faith and fair dealing. Noting that tort law is primarily designed to vindicate "social policy", the court held that contract law was quite sufficient to provide remedies for wrongful employer actions in the employment setting, and that such limitation was essential to provide commercial stability. The court cautioned, "(t)he expansion of tort remedies in the employment context has potentially enormous consequences for the stability of the business community" – consequences collective society cannot afford to incur.
We must reject the notion that every perceived "unfairness" requires compensation. It is not the job of the law to punish all perceived unfair behavior and dictate all conduct to the point where the entire world is "fair". Just because an employer may do certain things we don't personally consider nice or fair does not mean that the law should step in and rectify the perceived problem. Once, a majority consensus reigned in our society that such unfairnesses would ultimately be corrected by the free market and the ability of individuals to choose what they buy and for whom they work. Now, the new majority consensus seems to have shifted that corrective function onto the legal system. But do we want individual judge and jury preferences to determine what is "fair"? Imagine if you were subjected to this standard in your daily life – if you could be hauled before a judge for every act, intentional or not, which someone might deem "unfair". Should that judgment not be left to the collective public functioning within a free market? To the extent that we prefer the latter, we must pull back from the reliance on the litigation system and its causes of action.
