For a last-chance agreement to be applicable, “it should only provide that the worker waives any right to assert any right of any kind until the time of execution, not for the future,” Cohen adds. It may also force companies to reconsider the application of “last-chance” agreements in disciplinary proceedings with workers. “My clients use high-frequency last-opportunity agreements for a number of reasons, the most important of which is that they define the employee`s future obligation to comply with company guidelines in the future,” says Gutierrez. Both the federal courts and the EEOC rejected these assertions and found that reasonable last-chance agreements were consistent with workers` rights under the ADA. Although alcoholism and the guarantee of drug abuse are ADA disabilities, agreements are imposed because of staff misconduct and not a disability. The employee always has the choice not to sign the agreement, knowing that the consequence is disciplinary action that is the same as for any employee who violates the drug and alcohol policy. Keywords: Unfavorable Measures Alternative Discipline Conciliation Council Discipline Remedies Last Chance Contracts Replacement Suspension Special Note: many union officials mistakenly believe that it is not permissible to waive rights under last chance agreements. It is common knowledge that government employees may waive their right to appeal in exchange for one last chance to keep a job. See Smith v. Department of Veterans Affairs, 106 LRP 10546 (Fed. Cir. 2006, unpublished), citing Stewart v. U.S.
Postal Service, 91 FMSR 7004 , 926 F.2d 1146 (Fed). Cir. See also, McCall v. U.S. Postal Service, 88 FMSR 7006 , 839 F.2d 664 (Fed). Cir. Subsequently, the MSPB is not competent for a staffing action taken under an ACA in which a complainant waived his right of appeal. See Lizzio v. Department of the Army, 109 LRP 7816 , 110 MSPR 442 (MSPB 2009), citing Rosell v.
Us-Defense, 105 LRP 59860 , 100 MSPR 594 (MSPB 2005), aff`d, 106 LRP 48755 , 191 F.App x. 954 (Fed. Cir. Last Chance Agreements (CAAs) and counts contain conditions agreed upon by a (federal) or former employee and the agency in which the worker has the option to retain (or return) a job, as a rule, when the Agency would remove the worker from the federal employment relationship or already remove him.