These days, many employers don’t bother to print, arbitration agreements and other employment documents. Instead, they exist solely in electronic form, acknowledged by so-called electronic signatures instead of written ones.
That’s fine, as long as you have a system for authenticating those e-signatures. If you are sued, you may have to prove in court that a signature was really executed by a particular employee or applicant.
Recent case: Ernesto filed a class-action lawsuit against his former employer for overtime and other wage violations, as well as failing to provide required meal and rest breaks, provide accurate and complete wage statements, reimburse business expenses and pay final wages in a timely manner.
The company countered that the case belonged in arbitration because Ernesto had signed an arbitration agreement. Ernesto denied that, and said he could not remember doing so. The employer insisted that it had his electronic signature on the relevant documents, showing the date and time he clicked through to “sign” the paperwork. But other than to say that someone signed using his username and password, it didn’t have any specific proof that it was Ernesto.
The court said without that, it would not enforce the arbitration agreement. (Ruiz v. Moss Brothers Auto Group, No. E05729, Court of Appeal of California, 2015)
Final note: As a minimum, provide email confirmation that you received an electronic signature. Send a copy of the documents to the employee’s email account.
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