How many more chances after last-chance agreement?

By Jon Hyman, Esq., Wickens Herzer Panza, Cleveland

When is a last-chance agreement not a “last chance” agreement? When the 6th Circuit reviews it, apparently. In Moore v. Coca-Cola Bottling Co., the appeals court held that an employee’s last-chance agreement, signed after the employee tested positive for marijuana, did not bar his subsequent discrimination lawsuit when terminated after yet another positive test.

The LCA stated, in relevant part, “Moore releases and forever discharges the Company … from any and all liability of any kind whatsoever, relating to his employment with the Company, arising prior to the date of this Agreement ….”

The 6th Circuit relied on a combination of factors in reinstating Moore’s discrimination and retaliation claims.

• The meeting where Moore signed the LCA lasted only 10 minutes, with only two minutes dedicated to discussing the LCA.
• There was no indication the employer-provided Moore additional time to consider the terms following the meeting or offered him the opportunity to consult with an attorney.
• Moore’s union rep advised him to sign the LCA, stating that it was “better to fight with a job than fight without a job.” Thus, reasonable jurors could interpret that language as suggesting that Moore’s claims would survive his signing of the LCA.
• Although Moore had a college degree, his education was not in law, management or contracts. Thus, his background did not provide him with the necessary knowledge or skills to interpret the LCA.
• The LCA waiver language was ambiguous by failing to specifically mention discrimination or retaliation claims.

I disagree with this decision. The waiver to which Moore agreed should have been clear, especially to someone with a college education. There is nothing misleading, confusing or ambiguous about “releases the Company from any and all liability relating to his employment with the Company.”

Nevertheless, the takeaways here are obvious. When presenting an employee with a release of discrimination liability and waiver of a right to sue:

1. Offer the employee sufficient time to consult with an attorney prior to signing it.
2. Make sure the agreement specifically references statutory discrimination and retaliation claims instead of relying on catch-all language.

Don’t leave anything to chance, or you may find that your employee has multiple chances despite their signature.

Jon Hyman is a partner at Wickens Herzer Panza in Cleveland and one of America’s top writers and speakers on employment-law topics. Read his popular blog at www.OhioEmployerLawBlog.com.