Dunn v. Northeast Helicopters Flight Services, LLC ( 2023 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
DUNN v. NORTHEAST HELICOPTERS FLIGHT SERVICES, LLC—DISSENT
MULLINS, J., with whom ROBINSON, C. J., joins, dis-
senting. I respectfully dissent. This court has explained
that ‘‘[a]n employer violates [General Statutes § 31-73
(b)] whenever it demands any sum of money from an
individual to secure employment or continue employ-
ment.’’ (Internal quotation marks omitted.) Mytych v.
May Dept. Stores Co., 260 Conn. 152, 165–66, 793 A.2d
1068 (2002). Thus, the dispositive issue in this case is
whether the attempt of the defendant, Northeast Heli-
copters Flight Services, LLC, to have its employee, the
plaintiff, Tim Dunn, agree to share fees he would receive
as a Federal Aviation Administration (FAA) certified
pilot examiner—fees that constituted unrealized pro-
ceeds from a separate business venture, unrelated to
any wages or sums of money paid to the plaintiff by
the defendant as part of their ongoing employment rela-
tionship—legally constituted an act that violated the
statute or our public policy articulated therein. For the
reasons cogently outlined by the Appellate Court; see
Dunn v. Northeast Helicopters Flight Services, LLC,
206 Conn. App. 412, 432–35, 261 A.3d 15 (2021); I con-
clude that § 31-73 (b) is inapplicable to the circum-
stances of this case because any request or demand
for future FAA examination fees concerned unrealized
funds from a proposed future business venture between
the parties.1
In particular, I agree with the Appellate Court that
‘‘[t]he plaintiff was free to reject the offer, and the
defendant, under the at-will employment doctrine, was
free to terminate the plaintiff’s employment for his deci-
sion. The public policy inherent in § 31-73 (b) places a
limit on the at-will employment rule only by carving out
an exception that prohibits an employer from coercing
from an employee financial concessions related to
wages by conditioning . . . continued employment on
the employee’s capitulation to the employer’s demands.
As the trial court stated, Ԥ 31-73 (b) does not regulate
an employer’s reason for [discharging] an employee; it
regulates the use of continued employment as leverage
to extort a sum of money.’ ’’2 Id., 434.
Additionally, § 31-73 (b) not only ‘‘prohibits an employer
from demanding or requesting a sum of money upon
the representation or understanding that acceptance of
the demand or request is necessary for continued employ-
ment’’; (emphasis added); as the majority points out,
but also prohibits an employer from demanding or
requesting a sum of money ‘‘upon the representation
or the understanding that such refund of wages, fee,
sum of money, contribution or deduction is necessary to
secure employment . . . .’’ (Emphasis added.) General
Statutes § 31-73 (b). Therefore, the prohibitions in the
statute apply equally and in the same manner to secur-
ing employment and to continuing employment. See
Lockwood v. Professional Wheelchair Transportation,
Inc., 37 Conn. App. 85, 98, 654 A.2d 1252 (‘‘[t]he public
policy embodied in § 31-73 applies to hiring’’), cert.
denied, 233 Conn. 902, 657 A.2d 641 (1995).
With that understanding in mind, and reading the
statute as a whole, I cannot envision how the defen-
dant’s actions in the present case violated the public
policy embodied in § 31-73 (b). Specifically, if the defen-
dant had proposed the same examination fee sharing
agreement to the plaintiff during the hiring process as
a compensation scheme, i.e., offering the job as a flight
instructor to the plaintiff if he agrees to a 50 percent
share of the FAA examination fees, and the plaintiff
had rejected the offer and asked to be employed solely
as a flight instructor, surely, the defendant would not
have violated the statute by declining to hire the plaintiff
when the plaintiff rejected the employment offer based
on the compensation proposed. I see no real difference
under this statute between the request being made dur-
ing the hiring process, when there is no right to being
hired, versus the request being made in the context of
at-will employment, when there is no right to continuing
in employment. The real issue in either scenario is
whether the employer leveraged employment to exact
a sum of money. That did not happen under the facts
of this case.
Therefore, I cannot conclude that, within the at-will
employment relationship, the defendant was prohibited
from terminating the plaintiff’s employment because
the plaintiff rejected the defendant’s proposal of future
fee sharing. Neither § 31-73 (b) nor the public policy
embedded therein prohibits an employer and a prospec-
tive employee from negotiating the terms of the employ-
ment prior to hiring, and, similarly, § 31-73 (b) does
not prohibit an employer and an at-will employee from
negotiating the terms of a prospective change to the
terms of employment. Such discussions are an essential
component of the employment relationship, and the
legislature could not have intended § 31-73 (b) to pro-
hibit them.
For the foregoing reasons, I respectfully dissent.
1
I note that the Appellate Court aptly relied on Lockwood v. Professional
Wheelchair Transportation, Inc., 37 Conn. App. 85, 87–89, 92–95, 654 A.2d
1252, cert. denied, 233 Conn. 902, 657 A.2d 641 (1995), and Mytych v. May
Dept. Stores Co., supra, 260 Conn. 165–66, in its analysis. See Dunn v.
Northeast Helicopters Flight Services, LLC, supra, 206 Conn. App. 428–33.
In Lockwood, the Appellate Court concluded that the defendant employer
violated § 31-73 (b) and the public policy expressed therein when it made
explicit demands that the plaintiff employee could not return to work unless
he paid the defendant $1000 for its insurance deductible, even after the
plaintiff had obtained a small claims judgment, in which the small claims
court determined that he did not owe the defendant the $1000. See Lockwood
v. Professional Wheelchair Transportation, Inc., supra, 87–89, 92–95.
On the other hand, in Mytych, this court rejected the employees’ claim
that the employer’s calculation of commissions violated § 31-73 (b) because
the employer improperly deducted the pro rata share of the retail price of
unidentified returns from their gross sales when calculating the commis-
sions. See Mytych v. May Dept. Stores Co., supra, 260 Conn. 157–58. The
employees claimed that this method of calculating their commissions vio-
lated § 31-73 (b) because it constituted a demand or request for a sum of
money. See id., 162–63, 165. This court rejected that claim, concluding that
the employees had agreed to the terms for calculating their commissions
and that the commission agreement itself was not a demand or request for
a sum of money. Id., 166. Instead, this court observed, the employer ‘‘merely
calculated the commissions earned by individual salespersons, taking into
account factors such as identified and unidentified returns that alter the
total amount of gross sales for which the individual salesperson can claim
responsibility.’’ Id.
I agree with the Appellate Court that these prior cases support the conclu-
sion that the defendant’s actions in the present case do not fall within the
prohibitions of § 31-73 (b).
2
Although the Appellate Court seems to limit its conclusion to ‘‘financial
concessions related to wages’’; (emphasis added) Dunn v. Northeast Heli-
copters Flight Services, LLC, supra, 206 Conn. App. 434; I would not so
limit it. Instead, in my view, the demand or request by the employer for
financial concessions also falls within the prohibitions in § 31-73 (b) if it is
a demand or request for a ‘‘fee, sum of money or contribution . . . . ’’
General Statutes § 31-73 (b). Here, the defendant did not leverage the plain-
tiff’s employment in an attempt to exact a sum of money. Rather, the plaintiff
and the defendant were merely discussing a potential future business ven-
ture.