First, a staff member should be asked to promise anything beyond the assurance of taking action in the last-chance agreement. The employer should not ask the employee to forego a pay increase, to waive a right to a work benefit or something else that has nothing to do with work. It is apparent from the case law of the Court of Justice of Cognis that the agreement on the last chance would have threatened the termination of any future protected activity which, according to the Court, fulfils an element of the procedure apparently retaliation – an act of preventive retaliation. The Court has only one finding of damages left. If Cognis` last chance agreement had not included this forward-looking provision, I wonder how the deal would have turned out. Some employers take advantage of last-chance agreements (“ACL”), particularly in trade union policy circles, to give hourly workers “one last chance” to improve their performance. In return, the employee waives the right to use the union`s appeal and arbitration procedure if a subsequent termination is due to the continued increase in benefits or another violation of the directive. The employers state that, if not, the employee would be dismissed, but that in exchange for the signing of this agreement, “one last chance” may remain occupied; If the employee does not sign the ACL, the employee is fired because of the underlying violation that led the employer to propose the ACL. Last-chance agreements should not contain commitments from the employee that go beyond his assurance that he will perform the tasks contained in the agreement to the satisfaction of management… No promises on abandoning pay increases, giving up time out, weight loss, no matter… An ACF has a purpose, and that is to give an employee of the problem an understanding of his work, and an exit when he can get on his plate. The worker was asked to sign a last-chance agreement prohibiting him from submitting a non-discrimination tax as a precondition for continued employment.
According to the EEOC, Cognis depended on the implementation of the last-chance agreement and, when the employee refused to be bound by the agreement, he was fired. As the Court noted in its opinion, it is not common for a worker to have a worker summarily pronounced on a request for reprisals under Title VII. Whitlow`s act of opposing the ACF and revoking his consent to the ACF because it restricted his civil rights was also a protected activity. The ACL, by its clear language, threatens retaliation for protected activities. Cognis` request to subject Whitlow to an agreement to limit his legal rights to avoid dismissal is an illegal employment practice. Therefore, the rejection of this practice by revoking its consent to the ACF is certainly considered a protected activity. In addition, it was proven that the employer had made him sign the agreement because he had filed EEO complaints. The VA official`s refusal to discuss these complaints may indicate that he was frustrated with the employee`s complaints and was looking for a way to have him arrested.