Make agreements truly a last chance: It’s OK to forbid appeals or challenges — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Make agreements truly a last chance: It’s OK to forbid appeals or challenges

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If you want to give an employee one last chance to fly right, you can use a so-called “last chance agreement.” Such contracts can be used, for example, to set the terms for being drug or alcohol free and submitting to random testing.

Last-chance agreements can even include tough terms, such as a promise that the employee won’t challenge the test results, or get any kind of a hearing if he breaks the agreement.

Recent case: Claude Thomas worked as a firefighter for New York City and apparently tested positive for drugs in his system. To give him one last chance, Thomas and the fire department entered into an agreement that stated, “The finding of the presence of alcohol, marijuana or any other controlled substance in … blood or urine will be deemed to be a violation of this agreement.”

Thomas also agreed that if he violated the agreement, he would be “terminated without a hearing of any kind.” Thomas later tested positive for morphine and was fired.

Thomas sued. He argued that he didn’t break the agreement because he didn’t ingest drugs, and the morphine in his system must have come from some other source. He contested the accuracy of the test.

The court tossed out his claim, reasoning that he had agreed not to challenge any positive test and that he wasn’t entitled to a hearing. (Thomas v. City of New York, et al., No. 07-3498, 2nd Cir., 2009)

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