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Craft ‘last-chance’ agreements with on-the-ropes workers

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in Discrimination and Harassment,Employment Law,Firing,FMLA Guidelines,Human Resources

If you're fed up with an employee's conduct, consider entering into a "last-chance agreement" with the worker before cutting him or her loose.

Those agreements—signed by both parties—give employees one last chance to shape up. They're common in cases involving alcohol abuse, drug abuse or chronic absenteeism.

The benefits: Employees earn a chance to save their jobs, while you secure an ironclad agreement showing that the employee understands the consequences of not improving his or her conduct. Result: less chance of an employee lawsuit.

Don't fear the legality of a last-chance agreement; courts will usually uphold them. Just make sure the employee knows exactly what standards he or she must meet. Focus on the problem behavior; don't toss in a bunch of unrelated standards.

In a recent court case, an employee with a history of alcohol abuse signed a last-chance pact but then received a drunk driving conviction. He was fired and then sued, saying the firing violated the Americans with Disabilities Act because it placed different conditions on him. But the court sided with the company, saying all return-to-work arrangements, by their nature, impose different conditions on certain employees. (Longen v. Waterous Co., No. 02-3297, 8th Cir., 2003)

Final note: Check your state law before writing a last-chance agreement that limits an employee's off-duty conduct. In some states, employers can't discipline employees for lawful off-duty conduct.

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