Often in disciplinary actions the employer will propose, as part of a settlement to resolve administrative charges, that the employee sign a last chance agreement (“LCA”). An LCA is an agreement between an employer and an employee that is generally supposed to result in an employee’s immediate termination if they violate the terms of the LCA. It is entered into by employer and employee as part of a settlement to resolve pending disciplinary charges and in most cases, the employee agrees to the LCA to avoid termination from employment on that pending disciplinary action. The agreement will usually provide that if the employee is found guilty of committing another disciplinary infraction, he or she will be removed from employment and cannot challenge that penalty.  There are plenty of situations where it makes sense for an employee to sign a last chance. For instance, they may have admitted to an act or omission during the investigative phase of the case and the admission alone might be grounds for significant discipline. Similarly, agreeing to an LCA may be a definitive way to avoid termination when such an outcome is very much a possibility should the case go to a full hearing. Sometimes LCAs are unavoidable. In these instances, however, it is important that the employee and his/ her attorney or union representative take steps to mitigate the impact of the LCA.

Ideally, an LCA should be limited in both duration and scope. In terms of duration, there should be a provision included in the agreement that limits the applicability of the LCA to a defined time period, such as, e.g., one, two, or three years. By placing a time frame on the LCA, the officer or employee will be limiting the period wherein the LCA can be enforced by the employer. Often an employer will try to impose a substantial term, such as five years or the draconian “lifetime” LCA. Its always best to avoid agreeing to such terms if possible because an LCA will be a “dark cloud” over one’s head during the time it is active.

It is just as important to try to negotiate a limit to the scope of the LCA. By scope, I am referring to the types of future offenses which might “trigger” the provisions of the LCA. For example, if you’re a police officer who has gotten into multiple accidents in your duty vehicle where you’re deemed to be at fault, and you find yourself in a position where you might have to agree to a last chance, you should try to limit the scope of that LCA to future accidents in your police vehicle where you are deemed at fault. Try to avoid signing an LCA that will simply apply if you are found guilty of “any future disciplinary infraction.”

LCAs are problematic on several fronts. They hinder, if not eliminate, the ability to argue for a lesser penalty than that which is called for by the LCA, which is almost always termination. When challenging a disciplinary action, public employees in New Jersey can raise arguments centered on “progressive discipline.” This allows the employee to argue that while they might have engaged in conduct warranting discipline, the penalty sought by the employer should be significantly lower based on certain circumstances, such as the positive aspects of an employee’s overall employment record. If the LCA is valid and enforceable, it eliminates the employee’s ability to raise these progressive discipline arguments. This is why you must be very cautious about agreeing to a last chance. And if you find that you may have to enter into an LCA for one reason or another, it is crucial that you negotiate limitations on duration and scope. This will mitigate the applicability and enforceability of the LCA.