A last chance agreement gives a problem employee one final opportunity to keep his job. Initially used in union workplaces, it is now used in nonunion businesses as well. Last chance agreements are often used in the progressive discipline process as a final warning before termination. Employers use them to avoid grievances and arbitration in union situations or wrongful termination claims or law suits in nonunion workplaces.
Description
A last chance agreement is a formal contract between an employer and an employee. It is used when standard disciplinary methods fail to correct employee misconduct, such as violating policies, procedures or safety rules or chronic performance, attendance, behavior or substance problems. It includes a detailed timeline of the employee's performance problems and the steps the employer took to correct the problems. The agreement contains a list of specific conditions the employee must meet to keep her job. These conditions may include meeting production quotas; complying with attendance and tardiness standards; meeting performance or behavioral standards; and successfully completing substance abuse treatment, if appropriate. The agreement includes the consequences of violating the agreement -- automatic discharge -- along with the duration of the agreement, which is usually one year. It may include a waiver of the worker's right to file a grievance if she believes the employer violated the agreement.
Substance Abuse
Employers often use last chance agreements with employees who have substance abuse problems because it is a way to prevent wrongful-discharge lawsuits based on the employee's addiction. The Americans with Disabilities Act defines alcohol and drug addiction as a disability for which employees are entitled to protection against discrimination and reasonable accommodation on the job. In an addiction-related last chance agreement, an employee may be required to successfully complete substance abuse treatment; take and pass random drug test; improve his work performance or meet certain production quotes; and abstain from using alcohol or illegal drugs. The agreement serves as objective evidence that the employer made reasonable accommodations to assist the worker's disability. If the worker fails to comply with the terms of the agreement and is discharged, it is used to defend against claims of wrongful termination.
Employer Responsibilities
Employers have certain obligations after an employee signs a last chance agreement. First, the employer must act reasonably. For example, if an employee has an agreement for attendance and is involved in a serious auto accident on the way to work, she cannot be automatically discharged for violating the agreement by missing work. If training is required to improve her performance, she must be given the necessary training; if she is covered by the ADA, the employer must take steps to reasonably accommodate her disability.
Employer Violations
Last chance agreements provide few grounds for employer violation changes because they often include waiver of grievance rights. A court may uphold or overturn the waiver of grievance rights based on the specifics of the case. But if it is overturned, the burden of proof rests with the employee. However, if an employee successfully completes an agreement and then is discharged at a later date there, may be grounds for a wrongful termination claim based on discrimination, retaliation, harassment or other civil rights violations.
Tags: chance agreements, last chance, last chance agreement, substance abuse, wrongful termination, abuse treatment