Dealing with problem employees is something many employers would rather put off. But too often, they wait too long and when they're finally ready to take action and terminate troublesome employees, the employees could have already filed a Workers Compensation claim, alleged an unsafe working condition, or claimed a disability, etc. Suddenly, these employees become "bulletproof because of the possibility of a retaliation claim.

The cost of inaction can be steep. Employees win 63% of retaliation claims. And settlements in retaliation claims between 1998 and 2004 averaged $845,147.

Here are some tips for dealing with "bulletproof employees.

What exactly is a "bulletproof employee?

Let's say you have a marginal employee that you finally decide to terminate. But before you do, the employee files a Workers Comp claim. If you go ahead and fire the employee, it now looks like your motivation was retaliation.

How do you prevent problem employees from becoming "bulletproof?

Take action. When you know an employee isn't working out, document it. You might even want to keep a supervisory log to track performance problems. If necessary, fire them now.

Is it a good idea to have a probationary period to see if an employee works out?

There's a risk a court will use a probation period as an excuse to rewrite an employment at-will relationship. An employee at-will can be terminated at any time for any reason.
If a probationary employee can be terminated within 90 days, what happens after that? Do you now need a reason for terminating the employee? Some courts have ignored written at-will policies and ruled that "cause is required under these circumstances. Employers must avoid terms like "permanent employee and should monitor new employees without commitment to a probation period.

An alternative arrangement is to hire employees as temps first, or for a fixed duration, such as 30, 60, or 90 days. This allows employers a chance to assess new hires before putting them on the payroll full time.