Legal Clinic and Cons of 'Attitude' Surveys

Question: What are some of the legal pros and cons of having employees complete annual employee satisfaction or attitude surveys? We are thinking about doing them, but want to make sure we have considered all the benefits and drawbacks before we move forward.

Wednesday, November 20, 2013
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Answer: Your inclination to consider the pros and cons of conducting employee satisfaction surveys (also known as "attitude surveys") is commendable. While these surveys can be powerful tools for employers, they can also be problematic and may expose employers to liability if not administered or followed up on properly. Understanding when it is appropriate to conduct attitude surveys, how to conduct them appropriately, and what risks they entail can help you make an informed decision for your company.

Importantly, while some employers have successfully argued that these surveys should be protected from discovery under a special evidentiary privilege called the "self-critical analysis" privilege, oftentimes they are discoverable, and if the surveys are found to have alerted the employer to harassing or discriminatory conduct, the fact that the employer was so alerted could be used as evidence against it in litigation -- especially if no action was taken to remedy the alleged conduct.

What is an "attitude survey"?

An attitude survey is a tool that employers use to help them gauge employee perceptions of the company and their working environment. These may include thoughts on the effectiveness of management, the competitiveness of compensation and benefits programs, health and safety concerns, communication issues, company-sponsored initiatives and general workplace culture. Typically, employees are asked a series of questions in a written or online format and given a certain period by which to respond. Surveys may be designed in-house or by a third-party vendor.

Surveys can be tremendously useful to employers, as they can provide important information on what employees feel about working conditions, management, morale and the company image. Just the fact that an employer conducts a survey often sends a positive message to employees that their opinions matter. Further, managers can gain valuable insight as to how their management styles are perceived by employees, and can use this information to make adjustments when necessary. Finally, surveys can highlight departments or managers that are seen in an especially positive or negative light.

As with any tool, attitude surveys have the potential to be used effectively or ineffectively. Before administering such a survey, you should address the following considerations: (1) survey design; (2) survey administration; (3) communication of results, and arguably most importantly -- (4) follow-up (including senior-management commitment and HR-staff involvement). You should also carefully consider (5) the discoverability of employee surveys, and whether administering them creates exposure to potential liability.

1.     Survey Design:

a.     Focus. Try to resist the urge to cover everything in one survey (from management styles to benefit programs to co-employee working relationships). Focusing a survey around several topics is often more useful in helping to avoid it being too long or unwieldy. Also consider institutionalizing the survey so that it is administered regularly within your company. This way, you can seek feedback at regular intervals, focusing each time on different areas of the employee's work environment.

b.    Simplify. Ask questions in as simple a way as possible and keep them short and neutrally worded to reduce confusion and best ensure that all employees (regardless of education or sophistication level) will be able to understand it.

c.     Customize. While one-size-fits-all surveys are available for purchase from many vendors, it is often better to try to customize your survey to fit your company's needs and vocabulary. Sending employees a survey that refers to individuals as "managers," when your own employees actually refer to these individuals as "supervisors" or "team leaders" sends a signal that this is a stock survey and that the company does not care enough about it to get the language right. Similarly, every company works differently -- the questions in the survey should be worded to mirror the experiences of your company.

d.    Provide Benchmarks. It is helpful to provide employees with benchmarks that they can use to evaluate performance in certain areas. Often, employees may not know what the expectation is, and therefore cannot accurately evaluate whether it is being met. For example, if managers are expected to provide performance evaluations annually, you may want to state this expectation first, and then ask employees how well their manager meets that expectation.

2.     Survey Administration:

a.     Investigate. Before creating a survey, investigate what sorts of topics should be included by reviewing turnover data and exit interview information, speak with front line managers and supervisors to get a sense of what the issues are.

b.    Convene. You can conduct a survey either by distributing forms to be completed and returned, or by convening a group of employees to complete surveys all at the same time. Usually, the response rate for surveys administered via distribution is low, and results can be skewed because only people who feel strongly enough about the survey topics bother to respond. Convening employees in a group often avoids this problem.

c.     Manage Expectations. Be mindful of what expectations you're creating when you administer a survey. For a survey to be taken seriously, employees must believe that management is conducting the survey for the right reasons. Manage expectations by clearly stating what your intentions are in administering the survey, how and when survey results will be communicated, and who will be responsible for following up on whatever issues the surveys reveal.

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d.    Confidentiality. Often, a survey must be kept confidential in order for it to be effective. Ensure participants their identities and responses will not be revealed to their managers or co-workers.

3.     Communication of Results:

a.     Quickly. Communicate results as soon as possible after they have been tabulated. If you let too long a time pass between taking the survey and seeing the results, people will forget that they took the survey in the first place.

b.    Honestly. It is often best to communicate the survey results, even if they are unfavorable. Brushing the results under the rug, skewing their reporting or omitting results to certain questions will most certainly backfire and lead to an employee-relations disaster.

4.     Follow-Up:

a.     Scrutinize. Scrutinize survey results carefully, as things may not be what they seem. Generally, employees are not trained to evaluate other people, so they will often rely on their emotions when answering survey questions. For example, a negative score could mean that a manager is doing a poor job, or that the manager has taken on a difficult department and is holding people accountable. Similarly, glowing results for another manager could mean that the manager is performing well, or that he/she is not holding people accountable.

b.    Give Feedback & Create Action Plans. Senior managers should hold feedback meetings with their direct reports in which they discuss and clarify survey results. Individual managers should hold similar meetings with the employees they supervise. Use these meetings as a time to ask questions, provide clarification and "clear the air" about the survey results. Also, a survey will be of no use, and may actually be harmful if you don't create action plans based on the results. Action plans should be communicated as widely as necessary to show employees that the employer is honoring its good-faith commitment to follow up on survey results.

Keisha-Ann G. Gray is a partner in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Elizabeth Spector assisted with this article.

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