May 31, 2022

What’s Your (E)Sign?

The Electronic Signatures in Global and National Commerce or E-Sign Act was signed into law by President Clinton on June 30, 2000. Since then, electronic signatures have essentially been recognized as legally valid as “wet” signatures or those signed live and in ink.

It is common practice, particularly in the last few years as more employees are working remotely, to have employees sign new hire and other employment-related paperwork electronically.  So, what’s new?

On May 31st, a court ruled that there was a triable issue of fact as to whether a restaurant employee’s e-signature on her employer’s arbitration agreement was really hers.  She said that was not her e-signature; the employer said it was.  What factors did the court consider?

  1. The employer testified that all employees had to E-Sign the Agreement, but the evidence showed that at least one coworker’s agreement was hand-signed.
  2. The employee attested that not only did she not recall signing the agreement, but she also knew she did not do so because she had never seen it; she lived in a home with no computers; and she never used any of her employer’s computers at any location.

The employer provided no evidence to contradict the employee’s attestations in #2.

There was evidence to suggest the employer at least had the ability to set up a password for the employee in its system and E-Sign the agreement without her knowledge, including the IP address showing the document was E-Signed from the employer’s location.

This case was not a slam-dunk for the employee. The court writes, “None of this is to say, of course, that Barrows’s declaration, or her account of events is, in fact, accurate. At this stage, we do not know…to the extent this case turns on Barrows’s (and on Brinker’s) credibility or trustworthiness, the place to sort it out is…at ‘trial'” So the case was remanded to the lower court for reconsideration.

Lessons learned? Talk to your software vendors that provide your e-sign programs. Ask for their recommendations for confirming the authenticity and identity of the individual submitting the signature.  Add a one or two-step verification process.  They might be a bit burdensome but much less than litigation!

Want to learn more? Check out July’s webcast, “Employment Agreements: What Are You Really Trying to Protect (And Can You)?” Click here to access the archived recording. $25 pp and still provides 1.25 HRCI and SHRM credits.