Employee Surveys: Survey Its Risks First

The long term care industry is known for high staff turnover, which can affect care.  Often, staff separation can burden the available employees with extra duties or shifts.  Residents bond with employees and mourn their separation.  In response to this phenomenon, facilities and management companies have been encouraged to implement employee satisfaction surveys, which raise numerous red flags with employment law defense attorneys.

Employers can use employee satisfaction surveys for a multitude of well-intentioned reasons:  to make employees feel heard, to identify areas that need improvement, and to simply improve communication.  A younger workforce that values their voice being heard, as well as the increased use of technology in the workplace, means the use of surveys as well as other means of obtaining employee feedback are on the rise. While surveys can improve employee retention and performance, surveys can also lead to expensive investigations and lawsuits when managed incorrectly. Not only can the questions posed sometimes give rise to claims, but the employer’s response to the information gathered or lack thereof, can be just as fraught with legal consequences.

Every step of the feedback process should be considered before engaging with the employee.  While the guiding principle should be to gain insight into some aspect of the employment, thought must be given to who will be providing the feedback (the entire workforce, management, or a particular department), who will review the feedback (a department head or supervisor, human resources, or a particular committee), and how the employer plans to use the information (investigate the reasons for low performance in a particular department, region or the entire workforce, or gain a general understanding of employee goals).

If the feedback is sought to understand why a particular department’s performance has decreased in the past six months, is the department head the appropriate person to review the feedback? What if an employee responds that performance has decreased because the department leader favors “a certain type of female” employee? In some states, this ambiguous response can put the employer on notice of a potential claim for discrimination or sexual harassment that gives rise to a duty to investigate. An employer cannot ignore the response or it runs the risk of being in a worse position should a discrimination or harassment claim ever be filed.  Should that department leader review the feedback or be tasked with investigating any responses?  If the feedback was provided anonymously to protect privacy and promote free communication, how does the employer investigate such a response? Careful consideration of not only the questions asked, but also of the review and response process is necessary.

Surveys should be used to benefit the employment relationship and productivity, and not avoided for fear of the legal consequences.  Litigation should not be the price of designing an interactive workplace. Rather than hiring counsel to defend a company’s well meaning feedback process, hire counsel to avoid the lawsuit. Attorneys can provide employers with insight into how to frame questions to avoid accusations of discrimination, as well as how to frame the review and response process, so that the employer receives information tailored to its goals without risking expensive and avoidable human resource investigations and lawsuits.

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