Ensuring the Enforceability of Electronic Employee Arbitration Agreements: Lessons Learned from Recent Case Law
By Behnam Dayanim and Kelly DeMarchis
Employers who utilize electronic arbitration agreements with their employees should take a hard look at a recent case, Kerr v. Dillard Store Services, Inc., et al., No. 07-2604-KHV, 2009 WL 385863 (D. Kan. Feb. 17, 2009), which illustrates some of the potential pitfalls facing employers seeking to rely on electronic forms of those agreements.
Driven by the desire to cut costs and present a greener profile, electronic signatures, contracts and record retention have flourished in the wake of the passage of the federal Electronic Signatures in Global and National Commerce Act (ESIGN) in 2000, which endorses the validity of electronic contracts and signatures, and similar state laws. In many workplaces, the traditional pile of paperwork that new hires sign at employee orientation has been replaced, at least in part, with click-through and similar electronic instruments.