Business & Corporate, Employment & Labor
By Rayan F. Coutinho, Esq.
On June 30, 2000,
Congress enacted the federal Electronic Signatures in Global and
National Commerce Act (“E-SIGN”). E-SIGN eliminated some of the legal
barriers to the use of electronic technology to form and sign
contracts, collect and store records, and send and receive various
types of notices and disclosures. E-SIGN provides that no contract ,
signature, or record shall be denied legal effect solely because an
electronic signature or record was used in its formation.
Many states, including Ohio
have enacted electronic signature legislations as well. For example,
Ohio Revised Code §1306.06 provides as follows: “(A) A record or
signature may not be denied legal effect or enforceability solely
because it is in electronic form; (B) A contract may not be denied
legal effect or enforceability solely because an electronic record was
used in its formation; (C) If a law requires a record to be in writing,
an electronic record satisfies the law; (D) If a law requires a
signature, an electronic signature satisfies the law.”
The
Sixth Circuit has made it clear in the context of electronic
communications: “[c]onsidering the advancement and ubiquity of
electronic corporate communications, we will not induce a return to
older practices by imposing a paper receipt requirement.” Rather than
reproducing the facts and holdings of the cases, here are some of the
general principles and tips derived from cases, articles and treatises
that you may use when sending the employment handbook to employees by
email:
It
appears that some of the cases turn on the issue of notice. So sending
a mass email without more may be subject to litigation because it is
arguably inadequate to meet the minimal level of notice required.
If
an employer chooses to communicate an employment related policy such as
an employment handbook or arbitration policy, the employer should
consider communicating the policy more than once via email.
An
employer should consider circulating a paper copy to employees, similar
to a business magazine or newspaper that is circulated around the
office and having them put a check mark or initials on a sheet attached
to the front cover of the handbook.
An employer may also post a copy of the policy in various common areas.
Do
not include terms of the policy in the body of the email itself or in a
series of links. Send it as an attachment and clearly state in the body
of the email what the attachment is.
An
electronic acknowledgment of a policy is more likely to be held valid
if it is abundantly clear from the language of the policy itself that
electronically agreeing or “click-acknowledging” constitutes
“acceptance” of the policy.
Employers
should specifically seek an electronic acknowledgment that the affected
employees have “read, understood and agree to abide by the electronic
policy.” – Employers may use a “click-on” tool that asks employees to
mark a box to indicate that they have read, understood and accepted the
policy. If an employer is using the “click-on” method of
acknowledgement, the employer should maintain records of these
“click-on” acknowledgments and follow up with employees who have not
taken any affirmative steps to “click-on.”
Please
contact Rayan Coutinho at rfcoutinho@woodlamping.com for complete
details about the legal services offered by Wood & Lamping LLP.
admin @ January 5, 2008
