Introduction
Today, more employers are requiring that employees agree to arbitrate potential employment disputes. Typically, this arbitration agreement, provided during the on-boarding process, states that should any dispute arise during, or because of, the employee’s employment with the company, such dispute will go through arbitration, as opposed to a lawsuit filed in court. Arbitration is a private process in which one or more individuals render a decision about a dispute after reviewing evidence and hearing testimony and arguments. If arbitration is binding, the final decision can be enforced by a court.
With the use of modern technology, more companies are utilizing various online means of handling the employment on-boarding process, including getting employees to execute employment paperwork online with electronic signatures. Generally, electronic signatures are given the same weight as handwritten signatures. However, the signature must be attributed to the person before it can be established as the act of the person. If an employee disputes agreeing to an arbitration agreement, the employee must “unequivocally deny that an agreement to arbitrate was reached and must offer ‘some evidence’ to substantiate the denial.” Merely arguing against the use of an electronic signature is not enough to invalidate an arbitration agreement.
Challenging Arbitration Agreements
If an employee challenges their assent to an arbitration agreement, the employer must be able to attribute the electronic signature to the employee. The employer can attribute the act to the employee in any manner, including a showing of the efficacy of any security procedure, and from the context and surrounding circumstances at the time of its creation, execution, or adoption. When an employee’s electronic signature is considered alongside the employee’s other personnel information, and the security procedure involving the employee’s personal login and password, “it is clear that [the employee’s] electronic signature may be properly attributed to her.”
Conversely, an arbitration agreement may be unenforceable where the employee lacked control over the on-boarding paperwork process, i.e. another individual controlled the paperwork or computer on which the paperwork was completed. In successful challenges to arbitration agreements, courts often look to see if other employees have experienced this “one-sided” onboarding process.
If you feel your employment rights have been violated, or if you have any questions regarding your employment, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us online or by calling us at (205) 319-9724.