You meet and the relationship seems promising. Things are great for a while. It seems like the “real deal”. As time passes, you might discover a few flaws but you talk about them and you think everything can still work out. But then the minor problems continue, or worse yet, something major goes wrong where the other party seriously disappoints and you are suddenly faced with the question of “do I believe that this relationship can still work or should I just end it now?”
This could describe either a romantic or employment relationship. And the way that you handle a serious breakdown of expectations can be amazingly similar whether you are a party in a romantic relationship or whether you are an employer. Depending on the circumstances, you might decide to give them one more chance. In an employment situation, the one more chance is called a last chance agreement.
Last chance agreements generally set forth certain employment requirements which must be performed by the employee in order for the employee to avoid discharge. A binding and proper last chance agreement generally contains a description of the employer’s performance or behavior expectations and an assurance by the employee that he or she will meet those expectations to avoid discharge as well as an understanding that future failure to meet the expectations for a reasonable period of time will result in termination.
Last chance agreements should not include any promises by the employee beyond their assurance that they will perform the tasks contained in the agreement to the satisfaction of management. And, as the district court for the Central District of Illinois found, they should especially not include a waiver of Title VII or state anti-discrimination rights. That court found that an employer violated an employee’s rights when it discharged the employee when he refused to waive his Title VII rights as part of a last chance agreement. (EEOC v. Cognis Corp., 10-CV-2182, C.D. Ill ) It is equally true that last chance agreements should not contain a waiver of the employee’s future rights except to the extent of the agreement to discharge upon failure to satisfactorily perform. Finally, a last chance agreement must be “reasonable” in its terms, including and especially its duration. If an agreement, for instance, requires an employee to not be tardy forever into the future in order to avoid discharge, it may be deemed unreasonable by an arbitrator if after five years of perfect on-time arrival the employee is discharged for being five minutes late.
Last chance agreements are more commonly found when the employee is union represented because it creates the larger advantage for the employer. Because the agreement reflects an understanding and acknowledgement that if the performance standards are not met, or if the employee engages in any workplace infraction, then the employee will be discharged, it effectively eliminates the just cause standard, and the headache of a grievance if the employee is later terminated for violating the agreement .
A last chance agreement can be equally helpful in a non-union setting, though. It may be appropriate to enter into this type of agreement with a long time employee who exhibits behaviors that are relatively uncharacteristic of their employment history, but nevertheless serious enough to warrant discharge. A good example is the employee whose poor performance or behavior is the result of a drug or alcohol problem, or extreme situational stress. Successfully addressing that problem could restore the employee to his or her previous valuable status, but it needs to be clear that failure to comply with treatment (as directed by an appropriate and licensed treatment provider) will result in immediate discharge.
Like some romantic relationships, a last chance to repair and restore an employment relationship can be beneficial to the employer as well as the employee. This is especially true with a long term employment relationship or with an employee who holds a position that requires significant training. Sometimes it’s better to just try to stick with what you have.
