Being prepared and thinking ahead are critical in dealing with problematic, long-service employees. Most employers are not willing to terminate long-term employees, even ones who have a history of performance problems, except as a last resort. So it's not uncommon to find cases of companies setting up mechanisms to try to provide an incentive to these employees to behave. In extreme cases, these incentives take the form of so-called "last chance agreements", where employees are put on formal notice that one more episode of misconduct or incompetence will result in termination.
Which is where our story picks up in this case, and provides along the way a highly teachable moment. The last chance agreement offered to plaintiff by the employer contained a clause that probably meant well, but ultimately led to all kinds of unintended consequences. Specifically, as part of being allowed to continue employment, the employee had to agree not only to release the employer from any past claims against it (this is not uncommon and makes perfect sense), he had to agree not to commence any action against the employer under any employment law before any state or federal court or administrative agency, civil rights commission, etc. Failure to agree to these terms meant instant termination. Shortly after signing the agreement, the employee decided he could not agree to these terms; termination followed, QED.
Important safety tip. It's illegal for an employer to prohibit an employee from filing a charge with the EEOC or from filing a lawsuit as a condition of continued employment, and especially with regard to future events. An employer may be able to, in certain circumstances, restrict an employee's ability to receive any benefit from an EEOC charge (and thus remove the incentive for filing same), but the Commission retains an absolute right to investigate on its own any and all claims within its jurisdiction.
The trial court evaluated two important issues-whether revoking the last chance agreement, with its illegal clause, was in fact protected activity (making the discharge illegal retaliation), and whether simply offering the agreement, with its threat of termination for engaging in protected activity, was a retaliatory practice.
Again, important safety tip-the company in this case knew that it could not legally prohibit its employees from filing charges of discrimination with the EEOC, or suing it for discriminatory conduct that occurred after the signing of the agreement. Notwithstanding this knowledge, management allowed this term to remain in the last chance agreement, apparently in the hope that the threat would dissuade employees from filing charges and lawsuits, even though the company had no ability to actually enforce the provision. Don't do this. If you have a provision in an agreement that is legally unenforceable, or that you do not intend to enforce, take it out.
With respect to the first issue, the court found a question of fact as to whether the employee was fired because he wanted to protect his civil rights or because he revoked the last chance agreement. That means the issue goes to a jury, which I expect would not be particularly receptive to the employer's semantics here. In other words, the difference between being fired for saying "I revoke my agreement to this document which takes away my civil rights" (the employer's position) and being fired for saying "I want to protect my civil rights" (the EEOC's and employee's position) is a subtle and risky enough distinction that it should not be allowed to occur.
The second issue was a little easier for the court. Threatening to fire people for engaging in protected activity is sufficiently discouraging for most employees that the threat itself is a retaliatory act prohibited by federal (and most state) law. Accordingly, it's a bad idea to have such threats actually written into your employment documents.
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