Tips from the Other Side: November 2019

By Meghan Droste, November 13, 2019

Long-time fans of FELTG are probably aware that our former president and professor emeritus Bill Wiley and our current fearless leader Deborah Hopkins are fans of alternative methods of discipline — ways to hold employees accountable other than suspensions and removals.  One of the prime examples of alternative discipline is a last chance agreement (LCA). In an LCA, the agency holds a potential disciplinary action, such as a removal, in abeyance for a set period of time. If the employee does not reoffend during that time, the potential discipline goes away.  If they do, the agency moves forward with the action and the employees cannot challenge, having waived their right to by agreeing to the LCA.

Sounds simple, right?  Well, as with so much of what we do, yes and no. The concept is simple, but of course there are certain details that, if ignored, can make things far more complicated.

First, although you can have the employee waive the right to challenge the action and any claims of discrimination or harassment that occurred up to the signing of the LCA, you cannot have the employee waive future claims of harassment. That means if something happens the day after the LCA, the employee can still file a claim of harassment, discrimination, or retaliation based on the new event.

Another wrinkle is making sure that you comply with the Older Workers Benefit Protection Act (OWBPA). The OWBPA, which is part of the Age Discrimination in Employment Act (ADEA), sets out specific requirements for valid waivers of potential age discrimination claims. These requirements, which apply to employees age 40 and older, include a specific waiver of age claims, a period of at least 21 days to consider the waiver, and a 7-day revocation period after signing.  If an agency fails to include a proper OWBPA waiver in an LCA, the employee may raise age discrimination claims that occurred before the LCA. See Jaleesa P. v. Dep’t of Veterans Affairs, EEOC App. No. 2019001777 (Aug. 14, 2019).  This of course defeats at least some of the purpose of having the LCA to begin with.

One way to avoid these issues is to think of the LCA as settlement agreement, because with the waiver of claims that’s essentially what it is, and ensure that you keep in mind the same considerations you would in a traditional settlement agreement.  If you don’t, you may find yourself defending against claims you assumed were waived. Droste@FELTG.com