“Joe, in response to all this NFL stuff, we want you to display U.S. flags at your workstation.”

“No.”

“Well, then you’re fired.”

Don’t think that can happen? Then you haven’t heard about the Cotto v. United Technologies Corp. case — a long-forgotten Connecticut Supreme Court case from 20 years ago that has particular meaning in today’s environment where standing for the national anthem has become front page news.

Is this patriotic too?

The basic facts are as I described them above:

  • The plaintiff alleged in his complaint that he was employed on a full-time basis by the defendant for approximately twelve years.
  • In April 1991, the employer distributed American flags to employees in the plaintiff’s department and it was expected that all employees would display American flags at their workstations.
  • The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing or exerting pressure on employees to display the American flag.
  • After a suspension, he was fired by his employer on or about May 16, 1992.

The Supreme Court had two things to say on this. First, the Court held that the employee could raise a claim under a state law that an employee’s free speech claims were being violated. Again, i talked more about this law in a post last month.

But that’s only part of the decision. In the other half of the decision, the Court was asked to decide whether the employee actually had a free speech claim.

The Court reminds us first that not everything is a federal or even state case.  “As a statutory matter, a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question.”

And then the court reminds us, in language that has direct implications for the discussion we’ve been having about standing for the national anthem, that the Complaint was missing a few essential aspects to rise to that level.

Significantly, the plaintiff has not alleged that:  (1) he was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto;  (2) he was directed to affix the flag to his person or to his private property;  or (3) he was indirectly directed to associate himself with the symbolism of the flag because the location of his workstation was such that members of the public, or his fellow employees, reasonably could have attributed that symbolism to him personally.

Instead, the claim rested on the requirement for the Plaintiff to affix the flag to the workstation. The Court saw no meaningful difference to that act, versus an employer who did it for the employee — which would not violate the First Amendment.

A direction to the plaintiff to affix a flag to his workstation did not require him either to manifest or to clarify his personal political beliefs.   Because a flag was to be affixed to  each workstation, and because the plaintiff’s workstation was not exposed to public scrutiny, he was not required to assume the risk that others might attribute to him any political beliefs about the flag that he did not share.   In other words, the direction to the plaintiff, as a matter of law, was not a “coercion of belief.”

Hmmm.

Now, if you’ve been paying attention, you’ve been seeing press reports that the NFL and its teams may require its players to stand at the national anthem.  Let’s suppose that happened in Connecticut too and that a paid employee was fired for refusing.

Given the language in Cotto, could the employee allege that he “was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto” — a fact that was missing in the Cotto case?

That obviously is an unanswered question, but it just goes to show that you can learn a lot through your history.

"The United States is recommending U.S. citizens defer all non-essential travel to Bahrain."

Have you seen this headline? It’s from 20 years ago.

But strangely, that same headline made a reappearance this week. Don’t remember the last time it happened? Well, you should because a major Connecticut Supreme Court case arose out of it. 

And that case may have a significant impact on how Connecticut employers handle employees in the Middle East, and and in Japan.

In Parsons v. United Technologies, a helicopter pilot was allegedly assigned to work to provide training at Bahrain’s main military base, which was going to serve as the main staging area for allied warplanes after Iraq had invaded Kuwait.  

Allegedly, "the plaintiff became aware of a travel advisory issued by the United States Department of State (State Department), which was in force throughout the relevant period and provided in part: ‘Due to the Iraqi military invasion of Kuwait and continuing unstable conditions in the region, the Department of State advises all Americans to defer all non-essential travel to … Bahrain….’"

A few days later, the pilot wrote a memo that said that he refused to travel to Bahrain "because of the perceived threat to his health, safety and welfare, evidenced in part by the State Department travel advisory and in part by news reports about the situation in the Persian Gulf region generally. Within two hours of the plaintiff’s refusal, the defendant terminated the plaintiff’s employment and removed him from the building under security escort."

He sued alleging wrongful discharge.  The Superior Court struck that count of the complaint stating that "the statutes cited by the plaintiff do not express a public policy which would prohibit an employer from requiring an employee to travel to a foreign country where there may be some type of instability or military threat."  The Connecticut Supreme Court overturned that decision.

In doing so, the Court held: 

As a result of our careful review of the language, history, and public policy underlying the statutory provisions cited by the plaintiff in support of his claim, we conclude that this body of law expresses a clear and defined public policy requiring an employer who conducts business in Connecticut to provide a reasonably safe workplace to its employees.

The court continued:

We do not find support for the trial court’s conclusion that, even if the relevant statutes do establish a public policy requiring employers to provide a safe workplace, the policy only applies to a workplace that is: (1) located in Connecticut; and (2) controlled, maintained, or owned by the employer. …

Rather than expressing a safe workplace requirement that is limited to the confines of the state and to a work site exclusively controlled by the employer, these statutes simply and firmly prohibit employers who conduct business in Connecticut from exposing their employees to known hazards while they are performing their duties. A Connecticut employer is not relieved of the obligation to provide a safe workplace to its employees because that employer decides to send an employee to a work site outside Connecticut over which the employer has no control. The only relevant inquiry is whether the employer directed the employee to work in a place or condition that poses an objectively substantial risk of death, disease or serious bodily injury to the employee.

The 1997 decision has a good bit of resonance today and raises substantial questions.  Can an employee refuse to go to Bahrain today because the conditions pose an "objectively substantial risk of death, disease or serious bodily injury" just because of the travel advisory? 

And what about Japan? Can an Connecticut employee refuse an assignment to Japan because the potential for radioactivity poses the same or similar substantial risk? 

These are the questions that Connecticut employers with overseas business are having to face now. They’re not easy questions to answer and depend on the particular facts and circumstances of each situation. 

But regardless, employers faced with such questions should tread carefully before they terminate an employee based on their refusal to go to such a place and should seek legal guidance.

There’s a reason for the expression: Those who cannot remember the past are condemned to repeat it.

Don’t be one of those employers.

An employee who contended that he was fired after complaining about a physically threatening co-worker cannot bring a wrongful discharge claim, in a decision released by the Connecticut District Court.  The case, Ferrer v. T.L. Cannon Management Corp. (download here), does suggest, however, a way for employees to bring such claims in the future — with some artful language in the complaint. 

Readers of this blog will be aware  that Connecticut is an at-will employment state, absent some contractual promises or some other exception that may apply. In general terms, that means is that an employee can quit any time for any reason and that an employer can fire the employee at any time for any reason (so long as it’s not an illegal one such as race, gender, etc.) 

Two Connecticut Supreme Court cases are required reading for this concept: Sheets v. Teddy’s Frosted Food, Inc. 179 Conn. 471, 427 A.2d 385 (1980), and Parsons v. United Technologies Corp. 243. Conn. 66, 89, 700 A.2d 655 (1997).  [Disclosure: I worked on the Parsons matter.] 

Those cases created a notable exception to the at will standard:

  • In Sheets, the Court held that an at-will employee may sue for wrongful discharge if he is fired for complaining about, or refusing to participate in, his employer’s violation of public policy.
  • In Parsons, the Court ruled that the public policy embodied in the state statute requiring employers “to exercise reasonable care to provide for [their] servants a reasonably safe place in which to work,” Conn. Gen. Stat. § 31- 49, provides grounds for a wrongful discharge claim when an atwill employee is fired for refusing to work in conditions posing
    an “objectively substantial risk of death, disease or serious bodily injury.”

So, in the Ferrer case, the District Court was asked to extend the Parsons exception to a situation where the employee was allegedly discharged after informing his manager that a co-worker threw a punch at him and missed. The complaint also alleged that the co-worker assaulted another employee about a year earlier.

Continue Reading Court Examines The Parameters of the Public Policy Requiring Employers to Provide a Reasonably Safe Workplace