April 1998

Last Chance agreements

QUESTION:  

We've had problems with the same personnel over and over again, but it's so difficult to discharge employees these days.  Is there a more predictable way to remove "repeat offenders" from our workforce?

ANSWER:

The efficient use of Return-to-Work (or "Last Chance") agreements can eliminate the frustration of having to retain employees whose conduct or performance is inappropriate, as well as send a clear message to potential troublemakers that their performance must improve.

BACKGROUND:

In recent years, particularly in the field of industrial relations, employers have made more extensive use of Return-to-Work agreements between the employer and an employee whose performance standard or workplace behavior does not meet the standard required by the employer.  These agreements are often structured as a "last chance" for the employee to "shape up or ship out."

The benefits of these agreements accrue to both employer and employee.  In addition to the opportunity to retain their job, the employee is given a clear indication of the behavior or performance standards he or she has struggled with in the past, the standards he or she will be expected to meet, and the disciplinary consequences that will result from subsequent improper behavior. 

In return, the employer benefits from a more streamlined disciplinary process should the problem behavior recur.  While existing work rules will often describe the standards expected from employees, they will often be rules implemented unilaterally by the employer (or by

the employer and a labor union).  With a Return-to-Work agreement, the employer and the employee agree (on paper) to specific performance standards, making subsequent discipline for problem behavior much more black-and-white.

In addition, judicial or quasi-judicial bodies appreciate the clarity such agreements can offer.  For example, arbitrators will often uphold these agreements even where they appear quite stringent, because the parties have agreed to the terms.

One note, however: the employee cannot bargain-away the due process rights granted public employees, such as those found in Skelly.  In other words, the agreement may only establish and clarify what constitutes "good cause" to discharge the employee.  No summary discharge is allowed.

These agreements are, by their very nature, quite fact-specific.  For example, the agreement should set out the nature of the employee's past substandard behavior or performance which the

employer is willing to put behind it in exchange for the promise of future solid performance.  We encourage each agency to consider the use of such agreements in addressing chronic  performance or behavior patterns.  If you have any questions regarding Last Chance agreements, please call the CSRMA Employment Practices Hotline for further assistance.

The CSRMA Employment Hotline provides free legal advise to all CSRMA members on various employment issues.  For more information on the hotline please call Lynn Lieber with Fisher & Phillips at (650)592-6160.