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
