NEGOTIATING AND ENFORCING LAST CHANCE AGREEMENTS - PowerPoint Presentation

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NEGOTIATING AND ENFORCING LAST CHANCE AGREEMENTS

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ANNUAL CONFERENCE

MARCH 2018Slide2

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 AGREEMENTTHE CONSIDERATION FROM THE EMPLOYER IS GIVING UP THE RIGHT TO PRESENTLY DISCHARGE THE EMPLOYEETHE CONSIDERATION FROM THE EMPLOYEE IS TYPICALLY A NUMBER OF PROMISES TO DO CERTAIN THINGS AND REFRAIN FROM DOING OTHERSEVEN THOUGH ENTERED INTO UNDER THREAT OF TERMINATION, GENERALLY NOT CONSIDERED COERCIVE IN THE LEGAL SENSE

BINDING AGREEMENT

DEROGATION OF CBA

SUPPORTED BY CONSIDERATIONSlide3

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 SERVICEMAY BE DIFFICULT/EXPENSIVE TO DISCHARGECASE MAY HAVE SOME PROBLEMSE.G. STUDENTS MAY HAVE TO TESTIFYMISCONDUCT MIGHT NOT REACH LEVEL OF DISCHARGECOMPARABLE BEHAVIOR TREATED WITH MORE LENIENCE

REASONS FOR EMPLOYEE’S BEHAVIOR ARE MITIGATING

ADDICTION

BEHAVIOR RELATED TO TRAGEDY IN PERSONAL LIFEEMPLOYEE HARD TO REPLACEEMPLOYEE’S BEHAVIOR IS OUT OF CHARACTEREASES 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 TERMINATIONSlide4

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 HELPCHRONIC ABSENTEEISM OFTEN RELATES TO A DRUG OR ALCOHOL PROBLEM, BUT NOT ALWAYSOTHER 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 APPROPRIATENEED PROTECTION IF AGREEMENT NOT REACHED, EMPLOYEE TERMINATED, AND ARBITRATION OR LITIGATION ENSUES

ALCOHOL/DRUG USE

ABSENTEEISM

OTHER

WHO OFFERS?Slide5

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 MISCONDUCTACKNOWLEDGE EMPLOYER IS FOREGOING PRESENT TERMINATION IN EXCHANGE FOR EMPLOYEE’S PROMISESREQUESTED BY THE EMPLOYEE AS AN ALTERNATIVE TO TERMINATIONHAVE 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 DISCIPLINEAFTER A PERIOD OF TIME, SAY 3-4 YEARS, THE PRIOR DISCIPLINE IS LESS RELEVANT TO DETERMINING THE CONSEQUENCE FOR PRESENT MISCONDUCTCLARIFY 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

WRITTEN

UNION INVOLVEMENT

DURATION

WHAT CONSTITUTES A VIOLATIONSlide6

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 CONSEQUENCETHE AGREEMENT MUST HAVE NON-PRECENTIAL, NO PAST PRACTICE OR COURSE OF DEALING LANGUAGECLARIFY EXACTLY WHAT IS BEING WAIVEDJUST 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 TESTINGRIGHT TO REFUSE SEARCH OF PERSON/POSSESSIONS/VEHICLECERTAIN MEDICAL PRIVACY RIGHTS

CONSEQUENCES

NON-PRECENDENTIAL

WHAT IS WAIVEDSlide7

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 VIOLATEDUNION WILL LIKELY WANT SOME LEVEL OF REVIEW AS TO WHETHER A VIOLATION ACTUALLY HAPPENED AND WHETHER THE VIOLATION WARRANTED IMPLEMENTATION OF THE AGREEMENTFOR 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 VIOLATIONESTABLISH A PREPONDERANCE OF THE EVIDENCE STANDARDSHIFT 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 VIOLATIONSlide8

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 PROFESSIONALREQUIRE THE EMPLOYEE TO CONSENT TO THE RESULTS OF THE ASSESSMENT BEING SHARED WITH AN EMPLOYER REPRESENTATIVECHECK LOCAL LAWS FOR ANYTHING THAT WOULD BAR THISTHE 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 LEAVEVERIFICATION CAN BE SPECIFIC OR GENERIC

PRIVACY WAIVERS

TESTING CONSENTS

TESTING RESULTS

EMPLOYEE ASSISTANCE PROGRAMSlide9

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 INFORMATIONBUT IF TREATMENT PROVIDER REQUIRES ANOTHER FORM OF CONSENT, MAKE IT THE EMPLOYEE’S OBLIGATION TO SIGN THAT FORM OF CONSENTPOST-TREATMENT, REQUIRE THE EMPLOYEE TO CONSENT TO RANDOM DRUG/ALCOHOL TESTINGDETERMINE 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 PROGRAMSlide10

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 TESTFOR ALCOHOL, INSIST ON ANY EVIDENCE OVER .00 BACDON’T LEAVE ROOM FOR THE EXCUSE THAT THE EMPLOYEE WAS OUT THE NIGHT BEFOREIF 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 TESTINGIF YOU DO NOT HAVE A CLINIC TO DO COLLECTION, MAKE SURE YOU HAVE PROTOCOLS TO ESTABLISH THE CHAIN OF EVIDENCEHAVE THE UNION WITNESS THE PROCESS FROM COLLECTION TO MAILING/DELIVERYOTHERWISE YOU WILL BE CHALLENGED ON TAMPERING

PRIVACY WAIVERS

TESTING CONSENTS

TESTING RESULTS

EMPLOYEE ASSISTANCE PROGRAMSlide11

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 USEDEPRESSIONANXIETYANGER MANAGEMENTREQUIRE 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 PROGRAMSlide12

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-SHOWFAILURE TO ENFORCE WILL RESULT IN ARGUMENT THAT THE EMPLOYEE WAS LED TO BELIEVE HIS/HER BEHAVIOR WAS NOT IN VIOLATION OF THE AGREEMENTINVESTIGATION OF A VIOLATION SHOULD INCLUDE ALL OF THE TYPCIAL DUE PROCESS PROTECTIONSADVISE THE EMPLOYEE OF THE SUSPECTED VIOLATIONALLOW 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