Publications

Recently, in Dunn v. Northeast Helicopters Flight Services, L.L.C.,[1] the Connecticut Supreme Court relied on a largely unknown provision of Connecticut law to expand the narrow circumstances under which an at-will employee can invoke the common law doctrine of wrongful discharge in violation of a public policy to challenge his or her termination.

The facts in Dunn were as follows:  Northeast Helicopters Flight Services, L.L.C. (“Northeast” or “the school”) operates a helicopter flight training school.  In 2006, Northeast hired Dunn as a flight instructor and eventually promoted him to chief pilot.  Dunn was employed on an at-will basis.

In order to obtain a pilot’s license, a student needs to pass a flying examination conducted by a Federal Aviation Administration (“FAA”) examiner, who can charge a fee for the exam.  FAA examiners are not employees of Northeast, even if affiliated with the school.  Rather, the FAA examiner performs the test as an agent of the FAA and is paid directly by the student. 

Dunn and Northeast’s owner, John Boulette (“Boulette”), had discussed Dunn’s desire to become an FAA examiner and the benefits to Northeast of having an examiner affiliated with the school. When an examiner position opened up in 2017, Dunn asked Boulette for a loan to attend the training.  Boulette responded that he would provide the loan subject to the condition that Dunn pay back the loan with future examination fees he collected, and, after repayment, the examination fees are split evenly with Northeast. When Dunn returned from the training, he told Boulette’s wife that he paid for the expenses himself because he did not want to pay Northeast half the future examination fees he received.  She instructed Dunn to clean out his desk and told him he no longer worked for Northeast.

Dunn brought suit alleging wrongful discharge in violation of the public policy articulated in General Statutes § 31-73, which provides that “[n]o employer … shall, directly or indirectly, demand, request, receive or exact any refund of wages, fee, sum of money or contribution from any person … upon the representation or the understanding that such refund of wages, fee, sum of money, contribution or deduction is necessary to secure employment or continue in employment.” Dunn relied on the Connecticut Supreme Court’s 1980 decision in Sheets v. Teddy’s Frosted Foods, Inc.,[2] recognizing “an exception to the traditional rules governing employment at will so as to permit a cause of action for wrongful discharge where the discharge contravenes a clear mandate of public policy.”  The Court has applied this exception only in limited circumstances that involve an employer’s violation of an “important and clearly articulated public policy”[3] and only where no other statutory remedy exists.

After noting a prior Connecticut Appellate Court decision holding that “[§] 31-73 represents a clear public policy prohibiting an employer from taking advantage of the employment relationship by using the acquisition or continuation of employment as a mechanism for exacting sums of money from an employee,” [4] the Court concluded that the phrase “sum of money” is not limited to money derived from the employment relationship itself.  It next examined the phrase “representation or … understanding,” holding that it “encompasses both expressed representations and mutual understandings, as well as implicit representations by and unilateral understandings of the employer. … If the employer has such an understanding and acts on that understanding by discharging the employee for his refusal, that conduct is in violation of the statute, regardless of whether the understanding was communicated to the employee.”[5]  In other words, an employer can violate the statute by demanding funds separate and apart from those its pays to the employee as part of the employer-employee relationship and can do so without making it clear to the employee that his continued employment is conducted upon acquiescence to the demand.

Returning to the specific facts in Dunn, the Court concluded that a reasonable jury could find that Northeast, “either directly or indirectly, demanded or requested a sum of money from [Dunn] upon a ‘representation or … understanding’ that [his] compliance with the demand was necessary to continue employment”[6] and remanded the matter back to the trial court.

The Court addressed potential criticism that its ruling could have a chilling effect on entrepreneurial endeavors between employers and their employees by noting that the statute merely prevents “employers from using continued employment as a means to coerce employees into fee sharing or other wage sharing arrangements for endeavors outside of the employer’s primary business pursuits.”[7]  Absent use of an at-will employee’s continued employment as a leveraging tactic, then, mutually beneficial arrangements outside of the employer-employee relationship will not run afoul of Dunn and § 31-73.

[1] 346 Conn. 360 (2023).

[2] 179 Conn. 471, 475, 427 A.2d 385 (1980).

[3] Thibodeau v. Design Grp. One Architects, LLC, 260 Conn. 691, 701, 802 A.2d 731 (2002).                                                                                                                    

[4] Dunn, 346 Conn. at 375.

[5] Dunn, 346 Conn. at

[6] Dunn, 346 Conn. at 386.

[7] Dunn, 346 Conn. at 386.