1. NEGOTIATING AND ENFORCING LAST CHANCE AGREEMENTS
NaeN ANNUAL CONFERENCE
MARCH 2018

2. WHAT IS A LAST CHANCE AGREEMENT
A LAST CHANCE AGREEMENT PROVIDES AN EMPLOYEE SUBJECT TO DISCHARGE ONE LAST OPPORTUNITY TO ESTABLISH THAT HE OR SHE SHOULD BE RETAINED
THE AGREEMENT IS NEGOTIATED BY THE EMPLOYEE, THE EMPLOYEE AND USUALLY THE UNION
THE AGREEMENT REMOVES THE EMPLOYEE FROM THE TYPICAL DISCIPLINE PROTECTIONS OF THE BARGAINING AGREEMENT
THE CONSIDERATION FROM THE EMPLOYER IS GIVING UP THE RIGHT TO PRESENTLY DISCHARGE THE EMPLOYEE
THE CONSIDERATION FROM THE EMPLOYEE IS TYPICALLY A NUMBER OF PROMISES TO DO CERTAIN THINGS AND REFRAIN FROM DOING OTHERS
EVEN THOUGH ENTERED INTO UNDER THREAT OF TERMINATION, GENERALLY NOT CONSIDERED COERCIVE IN THE LEGAL SENSE
BINDING AGREEMENT
DEROGATION OF CBA
SUPPORTED BY CONSIDERATION

3. WHY AGREE TO A LAST CHANCE AGREEMENT?
A LAST CHANCE AGREEMENT IS AIMED AT REHABILITATION OF EMPLOYEE
SUCH AN EFFORT MAY BE MADE FOR A VARIETY OF REASONS
LENGTH OF EMPLOYEE SERVICE
MAY BE DIFFICULT/EXPENSIVE TO DISCHARGE
CASE MAY HAVE SOME PROBLEMS
E.G. STUDENTS MAY HAVE TO TESTIFY
MISCONDUCT MIGHT NOT REACH LEVEL OF DISCHARGE
COMPARABLE BEHAVIOR TREATED WITH MORE LENIENCE
REASONS FOR EMPLOYEE’S BEHAVIOR ARE MITIGATING
ADDICTION
BEHAVIOR RELATED TO TRAGEDY IN PERSONAL LIFE
EMPLOYEE HARD TO REPLACE
EMPLOYEE’S BEHAVIOR IS OUT OF CHARACTER
EASES THE WAY TO TERMINATION FOR FUTURE VIOLATION
LONG TERM INVESTMENT IN EMPLOYEE
EXPENSE OF RECRUITING AND TRAINING REPLACEMENT
UNCHARACTERISTIC BEHAVIOR
SETS THE EMPLOYEE ON THE EDGE OF TERMINATION

4. WHEN TO USE A LAST CHANCE AGREEMENT
ALCOHOL/DRUG USE IS THE MOST COMMON REASON FOR OFFERING A LAST CHANCE AGREEMENT
THE EMPLOYEE TYPICALLY HAS OTHERWISE BEEN A PRODUCTIVE EMPLOYEE WHO STAYS OUT OF TROUBLE
THE EMPLOYEE EXPRESSES REMORSE AND ASKS FOR A CHANCE TO GET HELP
CHRONIC ABSENTEEISM OFTEN RELATES TO A DRUG OR ALCOHOL PROBLEM, BUT NOT ALWAYS
OTHER MISCONDUCT CAN BE SUITED TO A LAST CHANCE AGREEMENT IF THE EMPLOYER DESIRES (E.G. TWO EMPLOYEES FIGHTING, DISCREET EVENT, UNLIKELY TO REPEAT)
CAN BE USED IN SEXUAL HARASSMENT CASES WHEN TERMINATION NOT WARRANTED, BUT CORRECTIVE ACTION WARRANTED
LET THE UNION OFFER THE IDEA OF A LAST CHANCE AGREEMENT. IF YOU DECIDE TO OFFER, MAKE SURE IT IS LABELED A SETTLEMENT OFFER.
OTHERWISE, THE OFFER ITSELF CAN BE ARGUED AS EMPLOYER ACKNOWLEDGEMENT THAT TERMINATION IS NOT APPROPRIATE
NEED PROTECTION IF AGREEMENT NOT REACHED, EMPLOYEE TERMINATED, AND ARBITRATION OR LITIGATION ENSUES
ALCOHOL/DRUG USE
ABSENTEEISM
OTHER
WHO OFFERS?

5. ELEMENTS OF A LAST CHANCE AGREEMENT
A LAST CHANCE AGREEMENT SHOULD BE IN WRITING
MEMORIALIZE THE CAUSE AND THAT THE EMPLOYER HAS THE RIGHT TO TERMINATE IMMEDIATELY.
BEST IF YOU CAN GET EMPLOYEE TO ADMIT MISCONDUCT
ACKNOWLEDGE EMPLOYER IS FOREGOING PRESENT TERMINATION IN EXCHANGE FOR EMPLOYEE’S PROMISES
REQUESTED BY THE EMPLOYEE AS AN ALTERNATIVE TO TERMINATION
HAVE UNION INVOLVEMENT AND SIGN-OFF BECAUSE THIS AGREEMENT IS WAIVING CERTAIN RIGHTS UNDER THE BARGAINING AGREEMENT
ETERNAL VS. DEFINITE DURATION
THERE IS PRECEDENT FOR A LAST CHANCE AGREEMENT TO REMAIN IN EFFECT INDEFINITELY
SOME ARBITRATORS VIEW LAST CHANCE AGREEMENTS LIKE OTHER FORMS OF DISCIPLINE
AFTER A PERIOD OF TIME, SAY 3-4 YEARS, THE PRIOR DISCIPLINE IS LESS RELEVANT TO DETERMINING THE CONSEQUENCE FOR PRESENT MISCONDUCT
CLARIFY THAT ANY TIME LIMIT WILL BE EXTENDED BY THE LENGTH OF ANY EMPLOYEE ABSENCES DURING THE PERIOD OF THE AGREEMENT
BE VERY CLEAR ABOUT WHAT CONSISTUTES A VIOLATION
POSITIVE TEST
REFUSAL TO TEST
UNEXCUSED ABSENCE
ELEMENTS OF A LAST CHANCE AGREEMENT
WRITTEN
UNION INVOLVEMENT
DURATION
WHAT CONSTITUTES A VIOLATION

6. ELEMENTS OF A LAST CHANCE AGREEMENT (CONT.)
THE CONSEQUENCES FOR VIOLATING THE LAST CHANCE AGREEMENT MUST BE CLEAR: TERMINATION
BE CAREFUL OF “UP TO AND INCLUDING” LANGUAGE
THIS TYPE OF LANGUAGE COULD BE USED TO ARGUE THAT TERMINATION IS NOT THE AUTOMATIC CONSEQUENCE AND GIVE AN ARBITRATOR ROOM TO REDUCE THE CONSEQUENCE
THE AGREEMENT MUST HAVE NON-PRECENTIAL, NO PAST PRACTICE OR COURSE OF DEALING LANGUAGE
CLARIFY EXACTLY WHAT IS BEING WAIVED
JUST CAUSE
ARBITRATOR’S AUTHORITY TO CONSIDER LESSER DISCIPLINE
ARBITRATOR’S AUTHORITY TO REVIEW EVENTS THAT RESULTED IN THE LAST CHANCE AGREEMENT
RIGHT TO REFUSE DRUG/ALCOHOL TESTING
RIGHT TO REFUSE SEARCH OF PERSON/POSSESSIONS/VEHICLE
CERTAIN MEDICAL PRIVACY RIGHTS
CONSEQUENCES
NON-PRECENDENTIAL
WHAT IS WAIVED

7. DID HE JUST SAY AN ARBITRATOR MIGHT BE INVOLVED?
YOU MAY NEGOTIATE THAT NOTHING ABOUT THE AGREEMENT OR ITS IMPLEMENTATION IS SUBJECT TO REVIEW
HOWEVER, MOST ARBITRATORS AND COURTS HOLD THAT WHILE THE UNION/EMPLOYEE MAY WAIVE JUST CAUSE OR OTHER DISCIPLINE PROVISIONS, ACCESS TO THE GRIEVANCE PROCEDURE CANNOT BE WAIVED (UNCONSCIONABLE)
DENIES THE EMPLOYEE OF ANY REVIEW OF THE EMPLOYER’S FINDING THAT THE AGREEMENT WAS VIOLATED
UNION WILL LIKELY WANT SOME LEVEL OF REVIEW AS TO WHETHER A VIOLATION ACTUALLY HAPPENED AND WHETHER THE VIOLATION WARRANTED IMPLEMENTATION OF THE AGREEMENT
FOR EXAMPLE, THE EMPLOYEE MAY ARGUE A POSITIVE DRUG TEST WAS THE RESULT OF PRESCRIPTION MEDICATION OR WAS OTHERWISE A FALSE POSITIVE
AN ALTERNATIVE IS TO STRICTLY LIMIT THE ARBITRATOR’S AUTHORITY
BAR REVIEW OF EVENTS LEADING UP TO LAST CHANCE AGREEMENT
BAR CONSIDERATION OF ANY CONSEQUENCE OTHER THAN TERMINATION IF THE ARBITRATOR FINDS A VIOLATION
ESTABLISH A PREPONDERANCE OF THE EVIDENCE STANDARD
SHIFT THE BURDEN TO UNION TO ESTABLISH ARBITRARY AND CAPRICIOUS BEHAVIOR BY THE EMPLOYER?
CAN ATTEMPT TO EXCLUDE THE ENTIRE LAST CHANCE AGREEMENT AND ITS ENFORCEMENT FROM REVIEW
UNION MAY NOT AGREE TO THIS
UNION MAY AGREE NOW, AND CHANGE POSITION WHEN YOU FIRE THE EMPLOYEE FOR A VIOLATION

8. ISSUES SPECIFIC TO DRUG AND ALCOHOL AGREEMENTS
LAST CHANCE AGREEMENTS FOR DRUG AND ALCOHOL USE IMPLICATE SEVERAL PRIVACY CONCERNS
THE EMPLOYER WILL LIKELY WANT/NEED ACCESS TO OTHERWISE CONFIDENTIAL INFORMATION
THE FIRST ACTION REQUIRED OF THE EMPLOYEE IS USUALLY AN ALCOHOL/DRUG ABUSE ASSESSMENT BY A PROFESSIONAL
REQUIRE THE EMPLOYEE TO CONSENT TO THE RESULTS OF THE ASSESSMENT BEING SHARED WITH AN EMPLOYER REPRESENTATIVE
CHECK LOCAL LAWS FOR ANYTHING THAT WOULD BAR THIS
THE EMPLOYER WILL REQUIRE THE EMPLOYEE TO COMPLY WITH ANY TREATMENT PLANS RECOMMENDED BY THE ASSESSMENT PROFESSIONAL
WILL NEED VERIFICATION THAT THE EMPLOYEE IS PARTICIPATING IN THE TREATMENT PLAN
EMPLOYEE MAY NEED TO BE ABSENT FOR INPATIENT TREATMENT
MAY WANT TO ADDRESS IN THE AGREEMENT HOW THESE ABSENCES WILL BE ACCOUNTED FOR: SICK LEAVE, STATUTORY LEAVE (E.G. FMLA, ADA), UNPAID LEAVE
VERIFICATION CAN BE SPECIFIC OR GENERIC
PRIVACY WAIVERS
TESTING CONSENTS
TESTING RESULTS
EMPLOYEE ASSISTANCE PROGRAM

9. ISSUES SPECIFIC TO DRUG AND ALCOHOL AGREEMENTS
MAKE SURE, UNLESS OTHERWISE FORBIDDEN BY LAW, TO LIST FAILURE TO PROVIDE CONSENT FOR EMPLOYER TO RECEIVE TREATMENT INFORMATION AS A BASIS FOR TERMINATION
MAKE IT THE EMPLOYEE’S RESPONSIBILITY TO GET YOU THE TREATMENT INFORMATION
MAKE SIGNING THE AGREEMENT EVIDENCE OF THE EMPLOYEE’S CONSENT TO RELEASING TREATMENT INFORMATION
BUT IF TREATMENT PROVIDER REQUIRES ANOTHER FORM OF CONSENT, MAKE IT THE EMPLOYEE’S OBLIGATION TO SIGN THAT FORM OF CONSENT
POST-TREATMENT, REQUIRE THE EMPLOYEE TO CONSENT TO RANDOM DRUG/ALCOHOL TESTING
DETERMINE HOW AND WHERE TESTING WILL BE PERFORMED
BEST TO HAVE A NEARBY CLINIC THE PARTIES AGREE TO USE
IF CLINIC ACCESS IS NOT PRACTICAL, THERE ARE MANY DRUG/ALCOHOL TESTING PRODUCTS AVAILABLE FOR PURCHASE
FOR ALCOHOL, MAY BE ABLE TO USE LOCAL POLICE DEPARTMENT BREATHALYZERS. MAKE SURE POLICE WILL COOPERATE
PRIVACY WAIVERS
TESTING CONSENTS
TESTING RESULTS
EMPLOYEE ASSISTANCE PROGRAM

10. ISSUES SPECIFIC TO DRUG AND ALCOHOL AGREEMENTS
INCLUDE THAT REFUSAL TO TEST WHEN DIRECTED IS AN AUTOMATIC VIOLATION RESULTING IN TERMINATION
HAVE A WITNESS AND A UNION REP PRESENT TO WITNESS THE REFUSAL TO TEST
MEMORIALIZE IN THE AGREEMENT WHAT CONSTITUTES A POSITIVE TEST
FOR ALCOHOL, INSIST ON ANY EVIDENCE OVER .00 BAC
DON’T LEAVE ROOM FOR THE EXCUSE THAT THE EMPLOYEE WAS OUT THE NIGHT BEFORE
IF EMPLOYEE IS DIABETIC, USE ANOTHER TESTING METHOD
FOR DRUGS, INSIST ON ANY POSITIVE RESULT BEING A VIOLATION
MAKE SURE THE TESTING PROCEDURES INCLUDING DIVIDING THE SAMPLE IN HALF
INITIAL POSITIVE RESULT NEEDS TO BE CONFIRMED BY A SECOND TEST, PREFERABLY A MORE EXACTING METHOD OF TESTING
IF YOU DO NOT HAVE A CLINIC TO DO COLLECTION, MAKE SURE YOU HAVE PROTOCOLS TO ESTABLISH THE CHAIN OF EVIDENCE
HAVE THE UNION WITNESS THE PROCESS FROM COLLECTION TO MAILING/DELIVERY
OTHERWISE YOU WILL BE CHALLENGED ON TAMPERING
PRIVACY WAIVERS
TESTING CONSENTS
TESTING RESULTS
EMPLOYEE ASSISTANCE PROGRAM

11. ISSUES SPECIFIC TO DRUG AND ALCOHOL AGREEMENTS
COMMONLY, THE AGREEMENT WILL REQUIRE THE EMPLOYEE TO ENGAGE WITH THE EMPLOYEE ASSISTANCE PROGRAM (“EAP”)
REQUIRE CONSENTS FOR THE EAP PROGRAM TO VERIFY THE EMPLOYEE’S PARTICIPATION
THE EAP MAY BE USED TO ADDRESS ISSUES UNDERLYING THE DRUG/ALCOHOL USE
DEPRESSION
ANXIETY
ANGER MANAGEMENT
REQUIRE THE EMPLOYEE TO ABIDE BY ALL AFTER-CARE COUNSELING/THERAPY/ACTIVITIES RECOMMENDED BY THE EAP AND TO PROVIDE EMPLOYER EVIDENCE OF COMPLIANCE
PRIVACY WAIVERS
TESTING CONSENTS
TESTING RESULTS
EMPLOYEE ASSISTANCE PROGRAM

12. ENFORCE THE AGREEMENT
FAILURE TO ENFORCE THE AGREEMENT MAY BE EVIDENCE THAT THE AGREEMENT REALLY WAS NOT A “LAST CHANCE”
THAT BEING SAID, BE REASONABLE
ONE MINUTE LATE TO WORK VERSUS A NO-CALL, NO-SHOW
FAILURE TO ENFORCE WILL RESULT IN ARGUMENT THAT THE EMPLOYEE WAS LED TO BELIEVE HIS/HER BEHAVIOR WAS NOT IN VIOLATION OF THE AGREEMENT
INVESTIGATION OF A VIOLATION SHOULD INCLUDE ALL OF THE TYPCIAL DUE PROCESS PROTECTIONS
ADVISE THE EMPLOYEE OF THE SUSPECTED VIOLATION
ALLOW THE EMPLOYEE TO PRESENT HIS/HER SIDE OF THE STORY
ALLOW UNION REPRESENTATION DURING INVESTIGATORY INTERVIEW
BEST TO ESTABLISH VIOLATION WITH CLEAR AND CONVINCING EVIDENCE, EVEN IF THE UNION/EMPLOYEE AGREED TO A LOWER STANDARD
FAILURE TO ENFORCE MAY BE SEEN AS A WAIVER
PROVIDE DUE PROCESS DURING ENFORCEMENT