Do You Have to Accommodate Employee Misconduct and Bad Behavior?

July 13, 2015

The Wisconsin Fair Employment Act (WFEA) generally requires covered employers to provide reasonable accommodations to employees with a disability to assist them in performing their job duties. In some instances, an employer’s duty to provide reasonable accommodations may include giving an underperforming employee temporary “clemency and forbearance” from the application of its normal performance expectations or work rules.

What about intentional misconduct? Does an employer have to tolerate an employee’s misconduct or bad behavior as a reasonable accommodation? The Wisconsin Labor and Industry Review Commission (LIRC) recently addressed that issue in a case involving a customer service employee who was caught hanging up on customers red-handed.

Facts

Wisconsin Bell, Inc., d/b/a AT&T is a telecommunications company that employs workers in various locations in Wisconsin. In 1980, AT&T hired Charles Carlson as a telephone operator. From 2005 to November 2007, Carlson was a customer service representative in Milwaukee. As a customer service representative, he processed orders and made outbound calls to local and long distance providers. His supervisor was John Reichertz.

In 2006, Carlson told Reichertz that he had bipolar disorder. Reichertz told Carlson to come to him if he experienced any problems at work because of his condition, and Carlson did so on about five occasions. On those occasions, Reichertz took Carlson to a conference room, talked to him, and gave him an opportunity to calm down. Reichertz also allowed him to call his physician if needed. Sometimes Carlson calmed down in 5 to 10 minutes and returned to work. Sometimes he made an appointment with his doctor and left for the day after notifying Reichertz.

In November 2007, Carlson was transferred to a support representative position in a call center that received a high volume of calls. His primary job was to provide technical assistance involving the bundling of television, Internet, and telephone services to customers and technicians.

Call center employees were generally prohibited from engaging in call-avoidance behaviors when they were able and available to take calls. Employees were allowed to stop incoming calls for bathroom breaks and illnesses and to go into “call wrap” status at the end of a call to document actions taken in connection with the call.

Between 2007 and 2009, Carlson requested and received several weeks off work due to his mental disorders. None of his call center supervisors was aware of his health condition with respect to the grants of time off work. At that time, the call center manager was Jason Carl. As of February 18, 2010, none of the call center’s management was aware that Carlson had a mental impairment.

On February 18, 2010, a manager noticed that Carlson was in call wrap status for an extended period and asked him about it. Carlson stated he was documenting a call but then took himself out of call wrap status and opened his line to incoming calls. During the next 10 minutes, he intentionally disconnected eight callers without acknowledging them. Initially, he offered no explanation for his behavior. However, he later admitted that he was angry with the manager for questioning his time in call wrap and retaliated by dropping the calls.

Carlson gave Jason Carl, the call center manager, letters from his psychiatrist and psychotherapist stating his conduct was related to his mental disorder. Carl and another manager told him it was too late for him to be excused from discipline for disconnecting the calls. AT&T placed Carlson on a 50-day unpaid suspension and required him to sign a one-year last-chance agreement as a condition of further employment.

Carlson returned to work on May 3, 2010. In April 2011, he applied for an opening in AT&T’s collections department and took a test for the position. On April 20, 2011, he learned that he did not pass the test. He became very sad and started to cry. He told his manager that he was not able to work, was having a difficult time because of the test results, and was thinking of leaving for the day. His manager told him to do whatever he needed to do.

Carlson went back to his desk and chatted with coworkers via the company’s internal instant messaging platform for about 40 minutes. His messages referenced his feelings, his desire to leave for the day, and his asking about the consequences of leaving. He then left after notifying the helpdesk. Carl reviewed the instant messages and determined they amounted to gossip and demonstrated that Carlson was able to work that day. Carl had a good-faith belief that Carlson falsely used an alleged illness to avoid calls.

On May 26, 2011, Carlson attended a disciplinary review board meeting and presented a letter from his psychiatrist indicating that he continued to have bipolar disorder. He argued that he was too upset to take calls after learning that he failed the collections test and that he engaged in instant messaging to get support from coworkers. Management did not believe him. AT&T concluded that Carlson was not sick and terminated his employment for faking an illness to get out of work. Carlson filed a discrimination complaint against the company with the Equal Rights Division and pursued the matter through an appeal with the LIRC.

Decision

The LIRC determined that AT&T discriminated against Carlson because of his disability and ordered the company to reinstate him with back pay and benefits and reimburse him for nearly $100,000 in attorneys’ fees.

According to the LIRC, Carlson’s misconduct of hanging up on customers was a violation of a uniformly enforced policy. Adherence to the policy was essential to adequate performance. It would not be reasonable to excuse Carlson from discipline, especially in light of management’s lack of knowledge of his disability.

However, the LIRC decided that Carlson leaving work did not violate an attendance or performance requirement. Carlson merely wanted a benefit that was available to other sick employees. He asked only that AT&T recognize that he was too ill to work that day. The LIRC stated:

“When [AT&T] discharged Carlson, [it] knew that he was asserting that he was unable to work on April 20, 2011, because of his bipolar disorder. [AT&T] simply chose to disbelieve that assertion and to instead believe that Carlson was only pretending to be unable to work.”

The LIRC found that AT&T’s decision to ignore a healthcare provider’s opinion without medical evidence in favor of its own “uninformed opinion” was not made in good faith. Therefore, the LIRC found that AT&T terminated Carlson because of his disability and ordered the company to reinstate him with back pay and benefits. Carlson v. Wisconsin Bell Inc., ERD Case No. CR201102363 & CR201200428 (LIRC, February 19, 2015).

Bottom Line

Over the last decade, employers have become very good at engaging in the interactive process to explore reasonable accommodations under federal, state, and local laws. The vast majority of employers have a high level of care and concern for their employees and go above and beyond to help them be successful. At the same time, there has been a significant increase in the number of accommodation requests arising after an employee engages in misconduct or bad behavior that he and his healthcare provider claim is attributable to a mental disability.

In this case, the LIRC rightly decided that AT&T should not have to tolerate a customer service employee hanging up on customers, especially when the conduct was in retaliation for a manager doing his job. At the same time, the LIRC did not agree with AT&T’s termination decision. According to the LIRC, the company disregarded the opinion of Carlson’s healthcare provider without any expert medical evidence of its own.


This article, slightly modified to note recent updates, was featured in the May 2015 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

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For more information about "Do You Have to Accommodate Employee Misconduct and Bad Behavior?," contact Troy D. Thompson at tthompson@axley.com or 608.283.6746.