Monthly Law Journal Article: Last Chance Agreements, 2008 (7) AELE Mo. L. J. 201.
     A Last Chance Agreement is a contract. To have an enforceable contract, there must be consideration, i.e., a performance or a return promise that must be bargained for and does not involve the performance of a pre-existing duty. Waivers of appeal rights are unenforceable when there is no consideration for the employee's waiver. Black v. Dept. of Transportation, #AT-0752-09-0926-I-1, 2011 MSPB 13.
     DHS did not breach a last chance agreement in refusing to rehire the plaintiff as a law enforcement officer. Although she was eligible for reappointment a year after her removal, management was not required to do so, or to ignore her conviction for obtaining money under false pretenses. Slattery v. Dept. of Justice, #2009-3095, 2010 U.S. App. Lexis 199 (Fed. Cir.).
     Appellate panel in California finds a “Last Chance Agreement” signed by a college professor was null and void under Education Code §7485, because “any contract or agreement, express or implied, made by any employee to waive the benefits” of the statutory disciplinary code is unenforceable. Additionally, an employee “need not exhaust administrative remedies provided by statute if the agency has already rejected the claim, announced its position on the claim or made clear it would not consider the plaintiff’s evidence.” Farahani v. San Diego Community College Dist., #D054087, 2009 Cal. App. Lexis 1225, 2009 WL 2232205 (4th Dist.). The reasoning behind the decision also could apply to waivers of other statutory rights, such as the California Public Safety Officers Procedural Bill of Rights, Government Code §3300.
     Appellate court concludes that an arbitrator improperly used a "just cause" analysis to set aside the grievant’s termination; the parties were bound by a last chance agreement "which limited the employee’s right to grieve/appeal." City of Yakima v. Yakima Police Assoc., #267997-7, 2009 Wash. App. Lexis 81.
     Arbitrator sustains the termination of a corrections officer for breaching a last chance agreement. He violated a rule that requires officers to immediately report any arrest -- and waited four days before reporting arrest for solicitation for an act of prostitution. Ohio Dept. of Corrections and Ohio CSEA/AFSCME L-11, #27-04-20070914-1673-01-03, 25 LA (BNA) 232 (Murphy, 2008).
     Appellate court reverses the termination of an Army CID special agent for violating a last chance agreement. The Personnel Board had relied on a ground for breach of the last chance agreement different from the one that had been asserted by the agency in the notice of breach. Lizzio v. Dept. of the Army, #2007-3224, 2008 U.S. App. Lexis 15108 (Fed, Cir.).
     Correctional facility had just cause to discharge an employee for violating last chance agreement relating to absenteeism when she failed to provide signed physician's verification for entire day for which she called in sick. Ohio Dept. of Rehab. & Corr. and Ohio CSEA/AFSCME L-11, 25 LA (BNA) 199 (Murphy, 2008).
     New York appellate court upholds a last chance agreement that included a waiver of the employee's right to arbitrate or litigate a subsequent termination. Schmitt v. N. Y. State Dept. of Corr. Serv., #502415, 2008 NY Slip Op 317, 47 A.D.3d 1098, 850 N.Y.S.2d 270 (3rd Dept.); appeal denied, 2008 N.Y. Lexis 1398.
     Seventh Circuit sustains the termination of a corrections officer for bringing contraband into a prison. There was no evidence that the failure to offer him a Last Chance Agreement was influenced by national origin discrimination. "An independent investigator and independent arbitrator separately reached the conclusion that [he] had engaged in the prohibited conduct of trading and trafficking" and there was no evidence they "bore any discriminatory animus..." Jennings v. Ill. Dept. of Corrections, #06-1637, 2007 U.S. App. Lexis 18325, 101 FEP Cases (BNA) 249 (7th Cir.).
     Arbitrator upholds the termination of a private sector worker for failing a drug test. Although the employee's last chance agreement only provided for suspicionless testing for two years, his recent absenteeism record provided cause for testing. Moreover, the last chance agreement did not expire after two years -- it only capped unannounced testing. Bowater and United Steelworkers L-9-1924, 123 LA (BNA) 673, FMCS Case #07/00094 (Kilroy, 2007).
     Appeals court enforces a last chance agreement. Whether the grievant violated agency rules was not arbitrable. Municipal Employees Org. v. Penn Hills, #1219-CD-2004, 876 A.2d 494, 2005 Pa. Commw. Lexis 304 (Pa. Commw. 2005). [2005 FP Sep]
     While a California city entered into two last chance agreements for first-time violations of the fire department's alcohol and drug use policy, they were specifically labeled as non precedent setting, and future disciplinary action was unaffected by the agreements. San Francisco Firefighters Union v. City and County of San Francisco, #1611-M, 2004 PERC (LRP) Lexis 70, 28 PERC 120 (Cal. PERB 2004). [2004 FP Nov]
     Supreme Court declines to review the ADA suit of a firefighter who was fired after a drug arrest and for failing to undergo outpatient therapy as required by an earlier disciplinary. O'Brien v. Hackensack, #03-906, 124 S.Ct. 1422, 2004 U.S. Lexis 1111 (2004); prior decis. at 2003 U.S. App. Lexis 12434 (Unpub. 3d Cir. 2003). {N/R}
     Upholding a termination for intoxicated driving, the Eighth Circuit holds that a no substance abuse last-chance agreement does not violate the ADA. Longen v. Waterous Co., #02-3297, 347 F.3d 685, 2003 U.S. App. Lexis 21190,14 AD Cases (BNA) 1665 (8th Cir. 2003). {N/R}
     Court sets aside an arbitrator's reinstatement ruling, because he did not consider prior disciplinary action, which was recent and uncontested, warning the grievant that further misconduct would result in his termination. City of Wilmington v. AFSCME L-1102, #19561-NC, 2003 Del. Ch. Lexis 26, 2003 WL 1530503, 173 LRRM (BNA) 2278 (Del. Ch. 2003). [2004 FP Jan]
     Federal appeals court overturns an ALJ decision that a former alcoholic agent was not in compliance with the Last Chance Agreement. A breach must be a "material" failure or omission. Gilbert v. Dept. of Justice, #02-3278, 2003 U.S. App. Lexis 13417 (Fed Cir. 2003). [2003 FP Sep]
     Arbitrator holds that a county employee, who was disciplined for drinking on duty, was not subject to a last-chance agreement, when management decided to give him a letter of suspension warning him that any further infractions "will result in termination," where the terms of letter were not negotiated with union. Martin County Bd. of Cmsnrs. and Martin Co. Public Employees, 116 LA (BNA) 1697, FMCS Case #01/15995 (Smith, 2002). {N/R}
     Arbitrator refuses to reinstate a police officer. During his six years on the job, the officer was at fault in seven on-duty vehicle collisions. City of Houston and "J" Individual Grievant, AAA Case #70-390-00017-02, 117 LA (BNA) 408 (Moore, 2002). {N/R}
     Arbitrator upholds the termination of an officer for two minor offenses, where he was subject to a last chance agreement. Pike County Sheriff and the FOP Ohio, FMCS #01/1135, 116 LA (BNA) 843 (Kindig, 2001). [2002 FP Jun]
     Continued intoxication and a failure to enroll in a required alcohol treatment program, furnished grounds for termination. Wolfe v. Jurczyski, 671 N.Y.S.2d 864 (A.D. 1998). [1999 FP 25]
     Language that violation of the LCA "will lead to termination" instead of "will result in termination" communicated the same outcome and was enforceable. Weyerhaeuser Co. and UPA L-515, 109 LA (BNA) 573 (Murphy, 1997). {N/R}
     Management can agree to non precedent-setting settlement agreements with an employee, even under protest from the bargaining unit. City of Tampa and Hillsb. Co. PBA, 109 LA (BNA) 453 (Sill, 1997). {N/R}
     Federal appeals panel declines to enforce a last chance agreement because the employer failed to live up to its obligations. Link v. Dept. of Treas., 51 F.3d 1577 (Fed.Cir. 1995). [1996 FP 42-3]
     The existence of a "last chance agreement" did not permit the employer to deny the worker his due process rights at a disciplinary proceeding. Lenzing Fibers Corp. and U.T.A. L-815, 105 LA (BNA) 423 (Sergent, 1995). [1996 FP 43]
     Appellate court upholds a negotiated agreement which removed a civil service employee from tenured status. Tankard v. Abate, 624 N.Y.S.2d 161 (A.D. 1995). [1996 FP 25]
     Arbitrator upholds termination of ambulance driver for violating "last chance agreement" where he caused a vehicular collision due to unnecessary and excessive speed. Stillwater (City of) and I.A.F.F. l-2095, 103 LA (BNA) 684 (Neas, 1994). {N/R}