Dive Brief:

• When a problem employee goes over the line but would be a very tough person to fire, an option could be a separation package to move him or her out of the workforce, according to SHRM.

• Much like typical severance packages, separation packages can be structured so that the person offered the deal would, for instance, get two weeks' salary for each full year of service, or maybe even three months of healthcare, etc.

• The job remains, but the person is given the incentive to leave after getting an explanation and signing a release. The employer is protected from litigation and can fill the existing job. However, the article warns, choosing a separation agreement comes with caveats.

Dive Insight:

Rich Falcone, a shareholder and employment litigation partner at Littler in Irvine, Calif., told SHRM that while it may sound like an easy out, unexpected challenges can emerge. For one, an employee may refuse to cooperate. After that, firing an offending employee could be construed as retaliation. 

There are other caveats. The offending employee may make tough demands and employers have little leverage. An employer cannot threaten an employee with firing to force them to take the package. Finally, if the separation offer is rejected, the employee could accuse the company of retaliation as HR attempts to collect data for a future firing.

What to do? Nicole Minkow at Pearlman, Borska & Wax LLP in Encino, Calif., told SHRM that taking a proactive approach by documenting corrective action before trying a separation agreement is one strategy. She adds that for it to work, the agreement must be a "win-win," or it probably will fail without some type of pre-offer leverage.

Employers have a vested interest in removing bad apples, as they can quickly bring down the whole workplace. The problem is ensuring their removal is fair and conscientious.