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Last Chance Agreements
 Many
of you are aware of the concept of a Last Chance Agreement or LCA. I
have often seen management issue severe discipline and/or removal for
seemingly minor offenses and then offer the employee an LCA rather than
go to a hearing or arbitration. The premise of course is to give the
offending employee “one last chance” to modify their behavior. Only a small percentage of employees who agree to an LCA are able to avoid the inevitable discipline that will come later, and/or survive past the LCA’s imposed terms and deadlines. Last Chance Agreements are merely traps that ensure that management will just fire you later rather than sooner. Generally, the terms and conditions of an LCA impose expectations and restrictions on the employee not usually imposed on others. There are always unforeseen events that can be interpreted as violating the terms of the LCA. Also, an LCA can contain language that is subjective in nature, allowing management wide discretion in its interpretation. One rarely sees an employee prevail in arbitration, EEO or M.S.P.B. when a Last Chance Agreement is involved. Why? Primarily because the issue being adjudicated isn’t so much whether a new infraction occurred; or whether the penalty is too severe. Instead the issue is whether the charged infraction was a violation of the provisions and terms of the LCA. Take for example an attendance issue. Management may try to serve a removal on an employee for X number of unscheduled absences (not otherwise covered by FMLA) in a six month period. The LCA may specify that only a fraction of the usually permitted unscheduled absences can be used within an encompassing period of time (e.g. two unscheduled absences in a six-month period); something that the employee believes s/he can achieve. Even though the employee may have a valid and legitimate reason for an additional unscheduled absence [even an event out of his or her control], the LCA does not allow or make concessions for valid absences; only for a specific number of absences in the designated period of time. An LCA is merely the last step in a removal action eventuality. And consider this – if management had all the evidence necessary to support severe discipline or a removal action they would follow through with the discipline or removal. The offer of a Last Chance Agreement is a red flag that management does not have sufficient evidence to support the adverse action. Management doesn’t offer a Last Chance Agreement simply because they are considerate, kind and altruistic. We’re talking about individuals with sociopathic tendencies, without conscience, remorse or regret for harming another individual in order to achieve their own advancement or privilege. My advice is that an employee should NEVER agree to an LCA. All you will be doing is putting off your removal until sometime later within the next two years (the usual life of an LCA). If your union tries to convince you to agree to accept an LCA they are either: too lazy, unskilled or uneducated to adjudicate your grievance; guilty of malpractice (a.k.a. – Failure to Duty to Fair Representation); or, someone in the union is using the employee as a bargaining chip for some other favor or consideration with management (I’ve personally seen this happen). Certainly I am not discouraging settlement of an adverse action, so long as the settlement does not make reference to, or otherwise infer that the agreement represents the employee’s “last chance” or “last opportunity” to somehow modify their behavior. Any employee receiving counsel from their representative encouraging them to accept a Last Chance Agreement should question whose interests are really being considered. J.R. Pritchett Administrative Law Representative |
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