A recent case decided by the Iowa Supreme Court asks another question: In a public service, does a faint hope agreement need to be approved by the board of directors or the Public Service Commission before it is effective? The Court answered the question with «no». Employers usually try to retain current 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 of facing a layoff, employers should consider using a last chance agreement (also known as a fixed choice) as a last resort attempt to retain the employee while protecting the company. A faint hope agreement is an agreement between an employer and an employee that sets out conditions that the employee must meet in order to maintain their employment. While employers are not required to offer last-chance agreements under the Americans with Disabilities Act (ADA), these agreements are often used for employees who are addicted to drugs or alcohol and whose current drug or alcohol use has caused the problems in the workplace. Since last chance agreements include mandatory negotiable issues such as discipline and job security, the labour committees have decided that the worker`s work organisation must be a party to the agreement for the agreement to be valid. Employment agencies generally refer to prohibitions in labour law against «direct contact» with employees on mandatory negotiable matters. However, the court concluded that if a life cycle analysis resulted in a significant loss of benefits, such as. B the employee`s obligation to waive his or her trade union rights of appeal or a future decision could constitute an adverse employment measure and therefore be discriminatory. An employer may choose to do so, but is not required by the ADA, to offer 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.
Typically, as part of a «fixed choice» or «last chance agreement,» an employer agrees not to fire the employee in exchange for an employee`s consent, to receive drug treatment, to abstain from more alcohol or drug use, and to avoid other workplace problems. Violation of such an agreement usually justifies dismissal because the employee did not meet the conditions to continue working. «Here, we are pleased that Whitwer entered into the agreement voluntarily, knowingly and intelligently. The agreement offered a significant advantage – maintaining employment with a five-shift suspension instead of a dismissal procedure. The fact that Whitwer`s lawyer was not present when he signed the agreement is not decisive. Whitwer`s lawyer was informed of the terms of the faint hope agreement before the hearing, and no objections were raised to his absence. Whitwer`s interests were represented at the hearing by two union representatives. Whitwer had ample time, apart from the presence of municipal employees, to review the agreement with union representatives.
In addition to planning his quarterback suspensions, Whitwer did not raise any questions or concerns about the deal despite several occasions. Based on these facts, we conclude that Whitwer accepted the Faint Chance Agreement and was fully aware of its benefits and consequences. The question for the Iowa Supreme Court was whether the fact that the Public Service Commission did not approve the faint hope agreement made the agreement unenforceable. In other words, the court had to decide «whether a public sector employee can waive these rights through a faint hope agreement that avoids dismissal proceedings.» In today`s job market, job security is at the forefront of everyone`s mind. The existence of opportunities such as a last chance deal is seen by some as a blessing, while others see it as a slightly abused reserve. The term refers to an agreement that is most often entered into between an employer and a unionized employee, allowing a person who has committed a serious violation of company policy to have a «last chance» to keep their job. Regulations vary considerably depending on the employer, the violation and various other circumstances. The use of this type of agreement helps to indicate the circumstances in which an employee can save his or her job. If an employee does not meet the expectations set out in the document, their employment relationship ends. Whitwer signed the last chance agreement. For the next 13 months, Whitwer continued to work as a firefighter without incident.
However, in November 2013, police were dispatched to report that Whitwer had sent a text message in violation of the no-contact order, trying to meet the victim and reach her elsewhere. Agents verified an actual text message, confirmed that the contact ban was still active, and arrested Whitwer. A court found him contemptuous and sentenced him to two days in prison, given the time he had served. The department then fired Whitwer for violating the faint hope agreement. Last chance agreements can be a very useful storage tool in some situations, but they need to be tailored to each individual situation. Employers who choose to use them may want to contact their legal counsel. For more information on other topics to consider, see: Using Faint Chance Agreements as a Retention Tool. «Nothing in the Civil Service Acts empowers or establishes standards for the Commission to review and approve such agreements. Rather, the Commission acts in a judicial capacity when it considers the dismissal, downgrading or suspension of a public servant. 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, this is an opportunity to keep their job.
From the employer`s point of view, this is an opportunity to show leniency and keep a skilled worker employed. This type of agreement is a simple process, but it consists of several essential parts that must be included. A common last chance agreement form should include the following: Violation of a faint hope agreement is usually a ground for immediate termination, regardless of the union settlement that might normally apply. Considerable efforts are being made in formulating these agreements in order to avoid further arbitration. It may be helpful to give the employee a general amount of time to comply with each of 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 go to rehabilitation as soon as the institution can admit him/her, submit situation reports halfway through and after graduation, and undergo monthly drug or alcohol testing for the first six months after returning to work. The agreement should specify exactly what the employee must do to maintain their workplace. For drug and alcohol problems, the employer often requires the employee to complete a drug or alcohol rehabilitation program, provide regular progress reports or medical clearance to contact the rehabilitation facility directly, and conduct regular drug or alcohol testing when the employee returns to work. Under the ADA, employers are discouraged from dictating the medical treatment of employees.
However, a faint hope agreement is an exception to this rule; Employers have more flexibility because they offer to suspend dismissals or other disciplinary measures if they do not have to. A recently released decision of the Michigan Court of Appeals, Jewett v. Mesick Consolidated School District, No. 348407, 2020 WL 3005995 (Me. Ct. App. June. 4, 2020), highlights why an employer should consider an LCA when making the decision to fire an employee, even in a non-unionized situation. In Jewett, the applicant brought an action against the employer for discrimination on the basis of disability. As a context and in the period prior to the prosecution, the employer provided the applicant with a life cycle assessment as a condition of his continued employment in order to avoid the employee`s dismissal.
However, the employee refused to sign the LCA and resigned instead. In the lawsuit, the employee argued that he was dismissed in disguise, that is, forced to resign because one of the provisions of the proposed LCA would have required him to follow «all oral and written guidelines.» On the basis of the facts of the present case, the General Court concluded that there was simply no reason to conclude that this line alone would render the worker`s working conditions intolerable, which is a precondition for a disguised request for discharge. .