Should he stay or should he go?
Sometimes, a marginal worker shows promise and immediate termination isn’t warranted. Plus, you’re concerned that a lawsuit may follow the firing.
In such cases, consider drafting a last-chance agreement (LCA) for the employee. Think of it as hitting the reset button. The employee benefits by keeping his job. You benefit because any eventual termination will be clean—and it shows a court you acted in good faith before pulling the trigger.
Recent case: Vincent cleaned buses for the Philadelphia transit agency. The agency accommodate his high blood pressure by allowing him to run the buses’ air conditioners when the temperature was above 90 degrees.
One day, Vincent left work early when he wasn’t feeling well, failing to obey a manager’s order to move a bus. As a result, he was fired. His union intervened and negotiated a last-chance agreement. The agency agreed because it was worried about a disability discrimination lawsuit.
The LCA stipulated that Vincent would be fired if he earned any discipline in the next two years. Seven months later, he missed a maintenance item and was fired.
He sued, alleging retaliation and disability discrimination. The case was quickly dismissed because there was no evidence that the agency’s stated termination reason was some sort of excuse for discrimination. Because he couldn’t show the reason he was fired under the last chance agreement was false, he had no case. (Mercer v. SEPTA, et al., No. 14-3338, 3rd Cir., 2015)
What to include in a last-chance agreement
- The reason the LCA is warranted.
- The terms and conditions that must be met by the employee, including a deadline.
- The time frame that the LCA is effective. One year is common, but they can be indefinite.
- The consequences of failing to satisfy the terms of the agreement (termination?).
- An acknowledgment that the employee has read and understands the agreement, which you both sign and date.
