Last Chance Agreement

[rellison7]

Jurisdiction

D.C.

My sister has been employed as a Phlebotomist in the same company for over 10 years. She's been frequently asked to be the "Charge" Phlebotomist over three or more employees. She has many 10+ hour days and oftentimes works 7straight days before she's given a day off. In addition, we have a very ill mother for whom she's on FMLA. She's asked to be taken off of "charge," to no avail. Due to errors that have occurred on her watch (some by her, but mostly by others) she is now being told that she has to execute a last chance agreement to keep her job. That agreement will allow her (or someone else while she's in charge) to make 6 additional errors on her watch in the next six months, before they release her. If she chooses not to sign, she will be fired immediately. The Union has informed her that it is her decision to make, but if she signs the last chance agreement, they will not be able to fight to get her job back. In her last meeting (which was attended by another employee in the same situation), she told them that she chose not to sign and the other employee declined as well. That other employee was fired today and they've scheduled a meeting with my sister on Monday. I'm sure she'll be fired on Monday. Does she have any legal recourse?

 

[adjusterjack]

Does she have any legal recourse?

Probably not.

It doesn't appear like the union is going to do anything one way or the other.

She would be wise to consult an attorney before that meeting.

 

[zddoodah]

Does she have any legal recourse?

Recourse for what? She's apparently going to be fired "[d]ue to errors that have occurred on her watch, [both] by her [and] by others." What would make you think firing her for that reason might be illegal? You mentioned that she is a member of a union, but we obviously have no idea what the union's CBA with your sister's employer says. You told us that the union advised your sister that, if she signs the "last chance agreement" and ends up getting fired for breaching the agreement, the union would be unable "to fight to get her job back," and we obviously have no reason to believe that isn't correct. However, that statement implies that the union may be able to help if she does not sign the agreement and is fired. Therefore, your sister should probably speak with her union rep and possibly with a local labor/employment attorney.

 

[hrforme]

And FMLA protection does NOT protect her from being fired due to these mistakes.

 

[rellison7]

Thanks for your responses. It is crystal clear she's being fired for the mistakes. I guess I question recourse because her employer requires her to work long days for several days at a time, which can cause physical fatigue which sometimes leads to mental fatigue. In addition, she's responsible for the care of an ill parent, which can also be mentally taxing. I'm in no way saying her employer should care about what's going on in her personal life and excuse these errors because of it. I only mention the ill parent and the FMLA to make you aware that her employer is aware of the added stress on her. It seems a reasonable employer would have, at the very least, relieved her of her charge duties when she requested it (even if they couldn't do anything about the hours) to try to in some way reduce the number of errors. In addition, it worries me that a company would be willing to give someone six additional chances to possibly make even more errors which could prove detrimental, rather than trying to fix the underlying problem – too many hours and too much responsibility.

BTW: I do realize that her job is not protected under FMLA due to the mistakes.

 

[txls]

Things that may seem reasonable and logical don't always have any bearing on the legality of things. It may seem logical that shorter hours and less responsibility would reduce errors, but there's no guarantee on that either.

 

[rellison7]

The reasonable and logical point is very well taken. The point was not made from a legal standpoint but rather a logical one. You're absolutely correct that taking those steps may not alleviate the problem. However, it seems to make more sense to me logically (not legally) to try altering the employee's position instead of giving them a chance to make six additional mistakes. Legally I was wondering if the stress and fatigue, which her employer essentially ignored, could be a defense.

 

[txls]

I don't see it personally, but then I'm not a lawyer. To me there are too many variables.

 

[zddoodah]

I guess I question recourse because her employer requires her to work long days for several days at a time, which can cause physical fatigue which sometimes leads to mental fatigue.

That's true of a lot of jobs in the medical field. It's also true of jobs in the legal field. Nothing illegal about it -- especially when the employment relationship is governed by a union CBA.

In addition, she's responsible for the care of an ill parent, which can also be mentally taxing.

Everyone has personal issues to some degree or another. It is often the case that personal issues might require a person to take a less demanding job.

It seems a reasonable employer would have, at the very least, relieved her of her charge duties when she requested it (even if they couldn't do anything about the hours) to try to in some way reduce the number of errors.

Maybe so, but that's a matter of business management, not law.

Legally I was wondering if the stress and fatigue, which her employer essentially ignored, could be a defense.

A defense against what? An employer is not legally required an employee who can't handle a particular job to the employer's satisfaction because of the demanding nature of the job and personal issues unrelated to the job. Nor is an employer required to find the employee an "easier" job.

 

[rellison7]

Thanks everybody. Your responses have been helpful. I think I have what I need.