Last chance agreements (LCA’s) and settlements contain terms agreed to by an employee, or former employee, and the agency, in which the employee is provided an opportunity to retain (or return to) employment, usually when the agency would otherwise remove, or did in fact already remove, the employee from federal employment. An employee’s response to a proposed removal (or other adverse action), if persuasive, may lead the deciding official to conclude the employee might succeed, if provided another opportunity. Normally, these agreements provide for waivers of appeal in exchange for the agreement to provide an employee a “last chance.” Though some cases do not allow latitude for Last Chance Agreements (such as sexual misconduct, workplace violence, embezzlement), as agency representatives, we often advise deciding officials to consider such agreements as a measure to reduce agency exposure to risk and expenditure of resources in defending the action upon appeal, as well as avoiding associated costs in back filling the position, particularly if the employee has an established history of good to exceptional performance. As a means of alternative discipline, Last Chance Agreements serve as a vital tool in both preserving an agency’s need to maintain order and providing an otherwise good employee the opportunity to avoid the catastrophic outcome of a removal from federal service.
Special note: many union officials erroneously believe a waiver of rights under Last Chance Agreements is not permitted. However, it is well established that government employees may waive their right of appeal in exchange for a last-chance opportunity to retain employment. 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 Cir. 2006, unpublished), citing Stewart v. U.S. Postal Service, 91 FMSR 7004 , 926 F.2d 1146 (Fed.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. 1991). See also, McCall v. U.S. Postal Service, 88 FMSR 7006 , 839 F.2d 664 (Fed. Cir. 1988). Subsequently, the MSPB does not have jurisdiction over a personnel action taken pursuant to an LCA in which an appellant waived his right to appeal. See, Lizzio v. Department of the Army, 109 LRP 7816 , 110 MSPR 442 (MSPB 2009), citing Rosell v. Department of Defense, 105 LRP 59860 , 100 MSPR 594 (MSPB 2005), aff’d, 106 LRP 48755 , 191 F.App’x. 954 (Fed. Cir. 2006).
In consulting with our employee clients, we typically assess applicability of Last Chance Agreements in all removal actions at the proposal stage. This is why it is imperative employees seeking our assistance contact us as early in the process as possible so we may incorporate offers of Last Chance Agreements (if applicable) early in the response stage (usually done in the form of offered conditions as part of the written response). It is far better (and more cost effective) to arrive at an interest based solution short of removal, than to argue the matter on appeal.
Practical Key Points Concerning Last Chance Agreements
- Last Chance Agreements are sometimes called Abeyance Agreements
- The duration of a Last Chance Agreement is typically one to two years
- If “actionable misconduct” occurs within the period the employee is subject to the terms of the Agreement, the employee can be removed without further notice or process
- In most cases, a waiver of appeal will be required
- There is no requirement the Agency equally apply an opportunity for a Last Chance Agreement to all employees
- Higher performing employees are prime candidates for a Last Chance Agreement provided the allegations are not so egregious (i.e. sexual misconduct, workplace violence, child pornography, embezzlement, etc.)
- If the terms of a Last Chance Agreement are imposed (i.e. removal imposed subsequent to a claim the employee breached the terms), it is extremely difficult for the employee to assert jurisdiction before the Merit Systems Protection Board
Merely offering a Last Chance Agreement at the response stage is insufficient however. In our collective experiences, we have seen a wide variety of LCA’s with varying language; some good and some really bad. LCA’s are also not generally unilaterally produced in that a last chance agreement requires the participation and agreement of an employee. See, Air Force Logistics Command v. FLRA, 91 FLRR 1-8014 , 949 F.2d 475 (D.C. Cir. 1991). Therefore, the affected employee should be prepared to actively engage the agency representative in crafting the Last Chance Agreement. However, union attempts at requiring a last chance agreement be negotiated with the union, rather than the affected employee, are generally non-negotiable because such a requirement limits an employees’ statutory right to choose their own representative or to represent themselves. See, Air Force Logistics Command, 90 FLRR 1-1591 , 38 FLRA 309 (FLRA 1990).
Special note: we have witnessed many union representatives try to reject Last Chance Agreements on behalf of union members for a variety of reasons. Sometimes, it is in a bluff to try and obtain what they perceive are better terms. It is important to keep in mind agency Employee and Labor Relations personnel are not vested in the outcome in either regard. They will make an offer and perhaps tweak certain terms if needed. However, they are truly uninterested in whether you accept the terms. If your union representatives are too difficult to deal with, you may need to intervene and accept the terms, as you have a right to do do. See, Air Force Logistics Command, 90 FLRR 1-1591 , 38 FLRA 309 (FLRA 1990).
If you require assistance with responding to a proposed adverse action or negotiating a Last Chance Agreement, please do not hesitate to contact us via this form or at (202) 642-1287. All initial consultations are without charge or obligation.