The Good News: At Last, Successful Last Rites Agreements
By Ann Boehm, September 18, 2019
In many training sessions, we suggest that agencies consider a “Last Rites” Agreement to handle problem employees. In my experience, despite our encouragement, many agencies still don’t use this effective tool. Finally, however, I heard from a recent class participant who had success with Last Rites in 8 out of 9 employment situations. That’s Good News, and I want to share it.
For those who don’t know what a Last Rites Agreement is, our Grand Poobah Emeritus Bill Wiley described it in an April 2017 FELTG newsletter article:
A Last Rites agreement is negotiated at the point that the supervisor has reached the conclusion the employee needs to no longer be employed in his position. Many times, the supervisor has already collected enough evidence to propose a removal based on either misconduct or unacceptable performance. Here’s how it works in most cases:
1. The supervisor or someone on her behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that he has a removal facing him soon, and is offered the chance to resign voluntarily rather than be fired. Some employees see a resignation as an advantage to being fired because the employee’s Official Personnel File will record a voluntary quit rather than a forced removal. (See the sample in the back of your copy of UnCivil Servant).
2. Supervisors see voluntary quits as an advantage to firing the employee because the quit is effective immediately at getting the employee out of the workplace, and the employee has waived appeal/grievance/complaint rights in a well-worded Last Rites agreement.
3. The employee has the choice of being fired and exercising appeal rights, or quitting and foregoing appeal rights in exchange for a “clean record.” [Boehm note: By acting before any final action occurs, the agency also avoids conflict with Executive Order 13839’s edict that there be no more Clean Record settlements that remove items from official personnel records. This is pre-official record.] Sometimes agencies will incorporate a little time off or attorney fees as an extra incentive to resign. MSPB has a perfect record at upholding agreements like these as long as the agency does not mislead the employee (emphasis added).
Sounds so logical and simple, but agencies are not doing these. I suspect some folks fear it is “coercion” or a “constructive discharge.” But that’s not how the MSPB and Federal Circuit see it. These are perfectly legal.
So along comes this month’s hero to tell us about the situations where he had success with Last Rites Agreements. To his credit, he wanted to share this with our newsletter readers to “potentially help people in the future.” We here at FELTG are very appreciative.
Here are some of the success examples:
- Female employee bullied and demeaned other female employees for approximately 10 years. Despite investigations substantiating misconduct, her supervisors never took any action. The last straw was when she harassed a colleague who was having trouble conceiving a child. The supervisor suddenly wanted to fire her. Without any prior discipline, the Last Rites Agreement was a safe way out. The agency called in the union representative, since the employee was in the bargaining unit. They offered her 60 days of pay, and even the union thought this was fair. She accepted the agreement!
- An employee had a long history of attendance issues, including AWOL and habitual tardiness. Supervisors failed to act, but finally did give him a letter of reprimand. He went AWOL after that. The agency offered him a Last Rites Agreement. The union representative was briefed prior to delivery. He accepted the agreement!
- One perpetually tardy/AWOL employee had received a reprimand and suspension and removal was up next. The employee had lost his son to illness six months earlier. As a humanitarian move, the agency offered a Last Rites agreement instead of removal. He accepted the agreement!
- Another employee was facing prison time for a DUI with bodily harm to another person. He kept postponing his court dates and lingered on as an employee, and the supervisors wanted the conviction in place before proposing removal. He knew he was facing prison time and likely removal, so he was actually relieved to get paid for 30 days and have the ability to resign. He accepted the agreement!
- Two employees were harassing and bullying a female subordinate for several months. She filed a grievance and the agency investigated the matter. The agency was ready to remove both, but the agency elected to try a Last Rites Agreement. They both accepted the agreement!
I didn’t even include all of the examples from this one agency. Last Rites Agreements work. At least give it a try. And if you try and succeed, please let me know. You too can make The Good News.