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Government agencies: Ensure last-chance agreements allow for pre-termination hearings

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in Employment Law,Firing,Human Resources

Government employees have a few rights that private-sector employees lack. One is the right to “some sort of” hearing before being terminated. A public employee essentially gets the right to challenge the decision to terminate him before it is final.

But what happens if the employee signs on to a so-called last-chance agreement? Can breaching the agreement mean automatic termination for the public employee? Only under very specific conditions, according to a court.

Recent case: Kerry Walls worked for the Central Contra Costa Transit Authority as a bus driver until he was fired. Walls filed a grievance and was reinstated. However, he had to sign a last-chance agreement stating that any unexcused absence meant termination.

Walls had an unexcused absence and was automatically terminated. He sued, alleging that as a public employee, he was entitled to a pre-termination hearing.

The court agreed. It said that the last-chance agreement lacked a specific waiver of the right to a pre-termination hearing and therefore violated Walls’ constitutional rights. (Walls v. Central Contra Costa Transit Authority, No. 10-15967, 9th Cir., 2011)

Final note: Government employers must follow the rules. Before instituting a last-chance agreement, have agency counsel review it to make sure it meets legal and constitutional requirements. Your attorney may be able to draft an effective waiver of the right to a pre-termination hearing that shows the public employee understood what he was giving up in exchange for another chance to keep his job.

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