More employers are using electronic signatures in the workplace, but there are some circumstances in which employers should still rely on handwritten signatures.
Courts have proven more likely to accept the validity of e-signatures for notice purposes, where an employer seeks to use the e-signature verification as a "shield." On the other hand, courts traditionally have either refused to enforce or applied much closer scrutiny in cases where the employer wishes to enforce an agreement proactively based on an e-signature-when the document is used as a "sword." Therefore, employers should consider retaining traditional paper signatures for arbitration agreements, trademark agreements, invention agreements, noncompetition agreements, employment agreements, and key executive agreements. Employers might consider relying on handwritten signatures as well when asking employees to verify hours worked and to confirm job duties and the employer's expectations.
Ultimately, an individual's signature is still among the most persuasive pieces of evidence on which we rely. While an individual can claim a computer glitch resulted in her affirmation of a certain policy, the individual cannot as easily say that she mistakenly provided her handwritten signature.
Uniform Electronic Transactions Act, E-Sign Act
The Uniform Electronic Transactions Act, a model state law that validates the use of electronic signatures and has been adopted by 47 states and the District of Columbia, creates a presumption in favor of the validity of electronic signatures only if each party has agreed to conduct transactions by electronic means. So employers should educate employees about e-signatures and obtain each employee's consent in writing for the use of e-signatures for HR-related documents.
Factors to Consider
Although e-signatures offer an effective tool on the path toward a more efficient, paperless office, employers should consider the following carefully before implementing e-signatures for HR documentation:
-Develop an electronic signature/document policy.
-Train employees on the policy.
-Implement a system to monitor compliance with, and enforcement of, the policy.
-Ensure that a robust mechanism exists for the retrieval of e-signatures.
E-signatures are easier to forge and harder to authenticate than handwritten signatures, noted one legal expert. On the other hand, it is easier to track the signatures of large numbers of employees by e-mail than by hard copy.
Finally, for more serious discipline issues, it is recommended that the employee sign on the memo itself. If you think you'll go into litigation, you'll want to get the actual signature.
SESCO Management Consultants is available to assist with your human resource issues. You may contact us by phone at 423-764-4127 or by email at firstname.lastname@example.org .