Common Law Claims of Employees

Totally apart from the claims that employees may make against an employer based on federal or state statutes, employees have a large menu of causes of action based on the common law developed by the courts. This chapter explains how these causes of action can arise, based on traditional tort or contract theories. In recent years they have been applied more and more frequently to the employment relationship. Common law causes of action can be grouped into two broad categories: tort and contract. Tort claims arise because of a violation of a duty to other individuals imposed by the law. There may or may not be a statute creating this duty. Contract claims are based on verbal or written agreements reached by the parties. Contract claims can also be based upon implied rather than express agreements of the parties. The courts may imply certain terms into a contract, and in this sense it becomes very similar to a duty. They may imply an entire contract, based on a course of action by the parties. There is a substantial difference in most states, however, between the damages that can be recovered on tort claims as distinguished from those recoverable on contract claims (tort damages being potentially must larger and often permitting punitive damages).