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Can 'last chance agreements' be considered discriminatory?

Two years ago, KEYT news anchor Paula Lopez sued her former employer, NPG of California, alleging several labor code violations against the Santa Barbara television station management. One allegation was that the "last chance agreement" she signed after a drunk driving arrest violated her privacy rights.

Lopez admitted to suffering from alcoholism, a condition her lawyer notes is "a legally protected disability." Although Lopez later filed to dismiss the suit, it raises a good question: Can "last chance agreements" be considered discriminatory?

What an LCA is meant to do

According to the American Bar Association, an LCA should define the problem, make expectations clear and spell out what will happen if expectations aren't met. In other words, "The Agreement should serve as a flashing neon sign in the eyes of the employee indicating that the employee can be fired today," according to the ABA paper.

An LCA is voluntary

Even though the agreement is considered a "last chance", entering into the agreement is voluntary and the employee puts the restrictions on himself by signing the agreement. In addition, the United State Commission on Civil Rights states that the employer doesn't have to provide an LCA as an accommodation for alcoholism or other disability if it affects work performance.

But the employer does have to follow through on the agreement. In one case, Journey's End, Inc, an employee's bad behavior continued after signing an LCA yet the company didn't act. When another employee sued over the bad behavior, the company used the LCA as an argument to show it opposed the behavior. A judge rejected that argument and said the company didn't act to correct the bad behavior.

Off the job counts too

The company can't change the LCA, however. In DePalma v. City of Lima, Ohio, a firefighter signed an LCA while being treated for alcoholism. He later began using pain pills after suffering from kidney stones. He was fired when the drugs showed up in a drug test. The Court ruled in favor of the firefighter, saying that he signed the LCA while seeking treatment, not because of poor work performance. If he continued treatment, the fire department shouldn't have fired him.

But that's a specific case. A company can't regulate what you do when you are off the job unless it affects your job performance. When you sign an LCA, often you agree to give up that freedom because the bad behavior is affecting your job performance.

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