When to Use a Last Chance Agreement

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In this section, the employer specifies what happens if the employee does not comply with all the terms of the agreement. As a general rule, the consequence is immediate dismissal, unless the employee has a valid reason for non-compliance. For example, if the employee signs a medical clearance so that the employer can receive progress reports, but the facility does not provide them, this could be a valid reason for non-compliance. It may be helpful to give the employee a general amount of time to comply with the terms of the faint hope agreement to ensure that the employee is progressing on the path back to work and productivity. For example, the employee could be asked to enter rehabilitation as soon as the institution can admit him/her, submit progress reports halfway through and at the end, and undergo monthly drug or alcohol testing for the first six months after returning to work. The other issue that employers sometimes face when using last-chance agreements is whether to include a waiver of rights. A waiver of entitlements is essentially an agreement that, if the employer refuses an otherwise justified dismissal, the employee agrees not to file a complaint of discrimination. The waiver of workers` rights is generally frowned upon by the Equal Employment Opportunity Commission (EEOC) and therefore needs to be carefully worked out if it is included in a faint hope agreement. It might be best to simply omit them, but if you decide to include them, you should check with your legal counsel. Working for Recovery: How the Americans with Disabilities Act and State Human Rights Laws Can Facilitate Successful Rehabilitation for Alcoholics and Drug Addicts at papers.ssrn.com/sol3/papers.cfm?abstract_id=3166746 You may know that employers are discouraged from requiring medical treatment of employees under the Americans with Disabilities Act (ADA). However, a faint hope agreement is an exception to this rule. What for? You get more leeway because you offer to suspend dismissal or any other disciplinary action when you don`t have to.

Does an employer have to provide a “firm choice” or “last chance agreement” to an employee who might otherwise be fired for poor performance or misconduct due to alcohol or drug abuse? The EEOC wins a rare summary judgment in the Title VII reprisal case in www.eeoc.gov/eeoc/newsroom/release/5-29-12.cfm (case related to the use of waivers in a last chance agreement) There will usually be a final part of one of these agreements stipulating that the employee must focus on all aspects of company policy and other claims that the employer retains the right to: dismiss the employee if a policy is violated. including those that are not specifically relevant to the previous offence. Depending on the nature of the breach that has already occurred, there may be additional elements to the latter part of the agreement, such as.B. certain actions that the employee should follow (or avoid), usually for the duration of a certain probationary period. Employers usually try to retain existing employees because an experienced employee can add value to a company and because of the high cost of hiring and training new employees. If employees have temporary problems that cause them to break company policies to the point where they risk firing, employers should consider using a last chance agreement (also known as a fixed choice) as the last attempt to keep the employee while protecting the company. A faint hope agreement is an agreement between an employer and an employee that sets out the conditions that the employee must meet in order to maintain their employment. While employers are not required under the Americans with Disabilities Act (ADA) to offer last-chance agreements, these agreements are often used for employees who are addicted to drugs or alcohol who have relapsed and their current drug or alcohol use has caused the problems in the workplace. The agreement takes the form of a written contract; An employee is expected to sign it and print their name, also recording the date. Your immediate supervisor and a staff representative – usually a human resources manager, depending on the size of the company – will attend the signing, also sign and print their names, and confirm the date the agreement was reached.

Breach of a faint hope agreement is usually a ground for immediate termination, regardless of the union rules that might normally apply. Significant efforts will be made to formulate these agreements to avoid additional arbitration. Here are some of the conditions typically included in last chance agreements for employees with drug or alcohol problems: The benefits of a last chance agreement for an employee are pretty obvious, but what`s for employers? As the example above shows, a great benefit is retaining a valuable employee. It follows that other benefits may include savings on hiring and training costs. Another potential benefit is the creation of positive corporate morale. Other employees will probably know that you gave the employee a chance, even if you didn`t have to. Once the employee has read and accepted the terms of the faint hope agreement, the employee and employer must sign and date the agreement. The agreement must include a summary of the employee`s conduct and performance violations and cite the company`s policies that have been violated.

A summary of progressive discipline that the employee has received may also be included, or if the employer has kept detailed personnel records, these may be referenced. In addition to the terms of the agreement, there are other points to consider when using faint hope agreements. The first question is how to decide which employees are offered agreements and which are not. You can use them at any time if an employee is about to be fired if you wish, but if you decide to be selective, you need to make sure that your selection process is not discriminatory. For example, you want to make sure that you don`t just give last-chance deals to men, people of a certain race or religion, or people with certain types of disabilities (for example. B, physical impairments, but not mental impairments). Appropriate selection criteria may be: job performance, seniority or operational requirements at the time of the agreement. A faint hope agreement is a disciplinary measure, but – if used fairly – it can be an opportunity to restore a damaged relationship. From the employee`s point of view, it is a chance to keep his job.

From the employer`s point of view, this is an opportunity to show leniency and maintain the employment of a skilled worker. Done right, faint hope agreements can be a great tool to support an employer`s efforts to retain employees who have temporary problems while protecting the company. What distinguishes last chance agreements from other disciplinary forms is the specific assertion that compliance with the terms of the agreement is necessary to obtain employment. Once the violation committed by the employee has been printed, specific guidelines can be cited, and the specific measures that the employee must take to prevent future violations can also be clearly stated (the procedure here differs significantly from one company to another). . . .