Not So Fast: The Wrong and Right Way to Prove the Authenticity of an Employee's Electronic Signature
By HEATHER MORGAN & ZINA DELDAR
To help meet the fast-paced demands of their global and mobile workforces, many employers have reconfigured their onboarding processes and HR system intranets to electronically disseminate company policies and agreements and collect employees’ electronic signatures. An important question to consider when using these processes is: “How will we prove that the employee received and signed the electronic instrument at issue?” As one recent California Court of Appeal decision highlights, taking the time to learn that answer -- and explain it to the court -- can be everything. In Ruiz v. Moss Bros. Auto Group, Inc., No. E057529, 2014 WL 7335221 (Cal. Ct. App. Dec. 23, 2014), the employer’s failure to do so cost it any chance it had to enforce an arbitration agreement with a class action waiver, forcing it instead to have to defend a putative wage and hour class action in court.
While Ruiz involved the application of California state law, the rules of federal evidence implicate similar principles. The opinion therefore is a timely reminder to employers within and outside of California using intranets and other processes designed to collect electronic signatures.