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.

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Photo of Michael DeRose Michael DeRose

Michael P. DeRose is a shareholder at the firm and primarily focuses his practice in labor/ employment law and other aspects of civil litigation, such as contract disputes. He has litigated and tried hundreds of matters before the Superior Court of New Jersey…

Michael P. DeRose is a shareholder at the firm and primarily focuses his practice in labor/ employment law and other aspects of civil litigation, such as contract disputes. He has litigated and tried hundreds of matters before the Superior Court of New Jersey, the Office of Administrative Law and the New Jersey Public Employment Relations Commission on behalf of various labor unions and their members. Michael has extensive experience defending and fighting for members of law enforcement and other public employees facing adverse disciplinary action, such as termination or suspension from employment. He also frequently argues before New Jersey’s Appellate Division on behalf of his clients.

A large portion of his practice is also devoted to contract negotiations on behalf of union clients, representing such clients in grievance arbitration/ contract disputes, and otherwise advising union leaders on labor and employment matters.  Michael also has significant experience in the realm of interest arbitration on behalf of the firm’s law enforcement and firefighter unions. As a result of the firm’s robust labor and employment practice, Michael regularly appears before various state agencies, such as the New Jersey Civil Service Commission, the New Jersey Division of Pensions and Benefits, the State Health Benefits Commission, and NJ PERC. In addition to representing labor unions and active employees, Michael also represents retirees before the Division of Pensions in disability retirement applications, both ordinary and accidental disability retirement, in pension forfeiture actions, and in other miscellaneous pension disputes. He also counsels private business and their principals in contract and employment law, in addition to representing their interests in civil litigation. Michael has a track record of obtaining favorable outcomes for his clients and treats each everyone of them on an individual and particularized basis in accordance with their needs.

Before joining the firm in August of 2015, Michael was an associate counsel at a civil litigation firm out in Trenton, New Jersey, where he principally focused his practice around employment law and tort claims litigation. Prior to that, he served as a law clerk in the Superior Court of New Jersey for the Honorable F. Patrick McManimon, Mercer County Vicinage, from September of 2012 to August of 2013, where he attained significant experience in the realm of alternative dispute resolution having mediated well-over one-hundred cases, primarily related to commercial and residential landlord/ tenant disputes and contract/ business litigation. He earned his Juris Doctorate in 2012 after graduating from the Western Michigan University-Thomas M. Cooley School of Law. In 2007, he earned his Bachelor of the Arts in Criminal Justice and Public Administration from Kean University where he was a member of the Kean University baseball team and vice president of the Alpha Phi Sigma chapter of the National Criminal Justice Honor Society.

Michael is admitted to the New Jersey State Bar, the United States Federal Court for the District of New Jersey, and is a member of the Mercer County Bar Association.