EAP in Practice:
Last Chance Agreements
Be careful when consulting with employers who ask for advice on constructing "last-chance agreements." They are designed to pressure an employee to improve performance or receive an adverse action in response to continued unsatisfactory performance. These intervention tools can work well when coordinated with you or other internal resources. But they have some dangers.
Not every company has a human resources department to advise managers on constructing last-chance agreements. But they may have an EAP. That means you may be called upon to help a supervisor construct such an agreement. Tread carefully, especially if you are not familiar with using such agreements. Not doing so could put your EAP in legal jeopardy if the employee loses his or her job and turns to the courts to remedy a claim of wrongful discharge.
There is no reason that the employee assistance professional can't lend some expertise to this intervention process by making it clear what the EAP's role will be in helping the employee, but the final approval of a last-chance agreement should not come from you. It's too legally sticky.
Last-chance agreements usually include at least the following elements:
• The job performance problems that have occurred
• The warranted disciplinary action for such problems
• Actions to be taken by management and the employee in favor of the job/disciplinary action being held in abeyance
• The penalty for noncompliance
• Employee agreement to comply with EAP and any treatment program recommendations
• The follow-up information and parameters
• A statement that the last-chance agreement does not alter the employment-at-will doctrine if applicable in the particular state
Many last-chance agreements fail to include good follow-up provisions by employee assistance professionals. This is tantamount to not servicing your customer after the sale is made. Both you and the employee lose. It's the Achilles' heel of last-chance agreements and contributes to their failure and controversy.
It's easy to say on judgment day that the employee made his or her "decision" and "had choices" but failed to follow through. However, in the back of most EA professionals' minds, they are often thinking, "I probably could have followed up better."
There is a tool for effective follow-up that I created for my addictive disease/DOT clients. You can download it on the "Free Tool" link shown on the left. It has instructions. I think you will find it easy to understand. This tool is specifically for clients treated for addictive disease and who enter recovery, but it can be adapted for any health/mental health/behavioral issue.
Creating an effective follow-up process and tracking your success can make a significant contribution to EAP research. More important, you may get the attention of those who can use the research. My favorite target is property casualty insurers, who can significantly benefit from core technology–based EAP processes. They are the ones who insure employers for wrongful termination lawsuits. Most, I believe, don't understand effective employee assistance and its potential as a loss-prevention tool for their industry, given its many different facets.
In the next EAP Toolbox, I will discuss follow-up tips and the Recovering Client Follow-Up Tool, available on the left, which can double your success rates—guaranteed. I will also discuss its empirical justification as evaluated at one treatment center.
To your value-added EAP,
Dan Feerst, LISW-CP, CEAP