Some HR professionals are afraid to enter into agreements with underperforming employees with a „last chance“.“ But as one workplace expert has noted, these agreements can be legal and useful, as long as they are done in the right way. Tim Eavenson, who writes on his blog Current Employment, usefully defines what a „last chance“ of the agreement is in a recent article: The agreement takes the form of a written contract; An employee is expected to sign it and print his name and also record the date. Your direct supervisor and a staff representative – usually a human resources manager based on the size of the company – attend the signing, signing and printing of their name and confirmation of the date the agreement was completed. A „last chance“ came about last summer, when a federal judge ruled in a case with Cognis Corp., which fired an employee who would not be willing to waive his right to file a complaint in federal court as part of a „last chance“ pact. Cognis asked Steven Whitlow to sign a „last-chance“ agreement that would prohibit him from bringing a discrimination action with the EEOC – even a charge based on something that could happen in the future. Whitlow refused. He was fired. The Employment Commission sued Cognis on behalf of Whitlows. In federal District Court, the judge ruled that Cognis stripped Whitlow of his right to apply for a discrimination exemption or lay a charge at the EEOC – and illegally opposed Whitlow by letting him go. The decision took the form of summary judgment, a rarity in cases of retaliation. But the court found that no jury could reasonably conclude that Cognis had not taken unlawful retaliation against Whitlow when he fired him and that Cognis` contrary argument „contradicts the simple logic.“ The result is that Cognis settled the case for $500,000.
Violation of a last-chance agreement is usually grounds for immediate termination, regardless of the unions that normally apply. The text of these agreements is largely contained in the text, in order to avoid further arbitrations. And as always, if you`re not sure if your „last chance“ deal is going to happen, it`s better to take it to an employment lawyer first, rather than hear about its flaws in court. Readers of this column know that I am not a fan of the „progressive discipline“ oxymoron. My antipathy extends to last-chance agreements, the latest written warnings and similar „or other“ documentation. They are degrading, dehuurizing and contradictory. They are also counterproductive, both as relational intervention officers and for prevention or advocacy. A „expense-luck“ agreement („LCA“) is an agreement between the employee and the employer, usually as a last attempt to avoid a dismissal in which the worker must consent to the AIC as a condition of employment in order to keep his job. As a general rule, the ACA is structured so that the employee agrees to have the staff member fired if the staff member addresses another incident over the life of the ACA.
THE LCAs were traditionally used in the union context, with the union and the worker accepting an AIC with the employer to avoid dismissal and the complaint arbitration process. There will generally be a final part of one of these agreements, which states that the worker must focus on all aspects of the company`s policy and asserts that the employer retains the right to dismiss the employee in the event of a breach of a directive, including those that are not specifically relevant to the previous offence.