As an employment litigator, I have repeatedly emphasized to my clients the need to get signed agreements, acknowledgements, and authorizations from employees. From a legal standpoint, these signed documents provide legal certainty (and frequently an absolute defense) to certain employee interactions and claims. For example, if an employee contends that she was unaware of the complaint procedure for a harassment claim, waving her signed acknowledgement form for the handbook that contains that procedure in front of her is a pretty stellar defense (and quite satisfying)! It’s hard for someone to repudiate their own handwritten “John Hancock.”
But, as you know, in our increasingly digital world, electronic signatures have become the norm. There are federal and state laws that provide for the validity of electronic signatures, such as the federal Uniform Electronic Transactions Act (“UETA”) and the state laws that adopt the UETA, as well as the federal Electronic Signatures in Global and National Commerce Act (“E-Sign”). Under these laws, an electronic signature is deemed to be the act of the person from whom the transmission is received, so long as this can be verified in some manner. And where effective computer security procedures can verify that the record is attributable to that person, this showing is presumptively made.
But an electronic signature is so, well, cold and clinical. It doesn’t have the same emotional or visceral impact as seeing an actual handwritten signature. And more importantly, despite all the electronic security measures – it may not “prove” that the individual actually signed the document, as was the situation in Duge v. Sears, Roebuck and Co. In that case, the Company had an electronically signed acknowledgement by which the employee had agreed to arbitrate any employment claims. The employee denied, however, that he had signed that electronic acknowledgement. The employee asserted that Company management knew his password and login information, and had sometimes even used his computer after he was logged in – and therefore someone else had electronically signed his acknowledgement! These assertions created a factual issue that could only be resolved at a trial.
I am afraid that such contentions will become more common in the future, and I am frankly surprised that more employees have not made such assertions. What does this mean? There’s no clear cut answer. Employers must balance the ease and convenience of electronic signatures against the certainty of a handwritten one.