Last month a California Court of Appeal held that while electronic signatures are valid on employment arbitration agreements in California, if an employee disputes an electronic signature, the employer bears the burden of proving the employee electronically signed the document. (Ruiz v. Moss Brothers Auto Group (2014) 2014 WL 7335221.) This decision can guide K-12 school districts and community college districts in ensuring the authenticity of electronic signatures, not only on employment-related documents, but on any documents signed electronically.
Ruiz was a named plaintiff in a class action wage and hour lawsuit against Moss Brothers Auto Group, Inc. The lawsuit alleged Ruiz and other employees were not paid for all hours worked, paid overtime wages, provided meal and rest periods, provided with accurate wage statements, timely issued final wages, and reimbursed for business expenses. Plaintiffs sought damages and civil penalties.
Moss Brothers filed a petition to compel arbitration on the basis that Ruiz had electronically signed an agreement to arbitrate all disputes with his employer. Moss Brothers also sought dismissal of the class claims because the arbitration agreement included a waiver of the right to assert claims on a class basis. The court acknowledged the use of electronic signatures is expressly permitted under California contract law. (Cal. Civil Code § 1633.7 [a signature may not be denied legal effect or enforceability because it is in electronic form and an electronic signature satisfies a legal signature requirement].)
Moss Brothers proffered a declaration from its business manager stating Ruiz electronically signed the arbitration agreement. In a competing declaration, Ruiz asserted he did not recall electronically signing the agreement. Moss Brothers countered that “all employees” were provided with “unique usernames and passwords” to log in, review, and sign the arbitration agreement. With the authenticity of the electronic signature in dispute, Moss Brothers had to prove by a preponderance of the evidence (more likely than not) the electronic signature on the arbitration agreement was attributable to, and resulted from, an act of Ruiz and not some other person. (See Civil Code § 1633.9 [the attribution of an electronic signature to a person may be shown in any manner, including showing the efficacy of any security procedure applied to determine the person to whom the electronic signature is attributable].)
The trial court concluded the evidence of the employer’s practice of issuing employee usernames and passwords was insufficient to prove the electronic signature resulted from an act by Ruiz. The Court of Appeal explained the evidentiary standard was not difficult to meet, but found a “critical gap” between Moss Brothers’ statement that “all employees” received a username and password to log in and sign the arbitration agreement and the conclusion that Ruiz therefore had electronically signed the document. The court opined that Moss Brothers should have explained how Ruiz’s electronic signature came to be placed on the arbitration agreement and how the electronic signature could have been completed only by an act of Ruiz. The employer could have done so through evidence establishing the efficacy of the security procedures applied to the username and password that Moss Brothers issued to Ruiz and explaining that only Ruiz could have electronically signed the arbitration agreement.
K-12 school districts and community college districts, unlike the parties in Moss Brothers, must comply with the more strict public entity digital signature requirements delineated in section 16.5 of the Government Code. Section 16.5 refers to electronic signatures as digital signatures, and allows K-12 school districts and community college districts to choose whether to use or accept digital signatures.
If a district allows digital signatures, the signature must meet all of the following seven requirements:
- Be unique to the person using it;
- Be capable of verification;
- Be under the sole control of the person using it;
- Linked to data in such a manner that if the data fields are changed, the signature is invalidated;
- Conform to regulations adopted by the Secretary of State, listed at Title 2, Division 7, Chapter 10 of the California Code of Regulations;
- Prior to accepting a digital signature, districts must ensure the level of security used to identify the signer and transmit the signature is sufficient for the transaction being conducted; and
- If a certificate is a required component of the digital signature transaction, the district must also ensure the certificate format used by the signer is sufficient for district’s the security and interoperability needs. (Government Code § 16.5; 2 Cal. Code Regs. §§ 22002 and 22005.)
The Moss Brothers decision highlights the need for school districts using digital signatures for employees, students, parents, and third-party vendors to have policies and regulations in place that ensure each signature meets these requirements. Usernames and passwords should be utilized for digital signature purposes and should be maintained in a secure manner to ensure only the designated user has access to this information. School districts may adopt secure electronic signature board policies and administrative regulations that permit employee, student, parent, and third-party vendor signatures to be tracked and confirmed such as through a confirming email to the signer and the district indicating which documents were electronically signed and when. Human Resources, Information Technology, and other management personnel should be familiar with the district’s digital signature protocol so they can explain it in detail, if necessary, to a court.
K-12 school districts and community college districts utilize electronic signatures for employees, students, parents, and third-party vendors. Common electronic documents include:
- Employee notifications
- Parent notifications
- Student notifications
- Third-party contracts
- Settlement, resignation, and retirement agreements
- Electronic signature attendance systems
- Electronic registration systems
- Electronic permission slips
- Electronic medical notifications
- Electronic assignment submissions
- Electronic acknowledgments
- Electronic transactions
In light of the burden described by the Moss Brothers court, adequate verification methods for the electronic signatures on these and other documents must be in place to protect the district in the event an electronic signature’s authenticity is disputed. An electronic signature policy, regulation, or practice guideline is strongly recommended for this purpose.
Other AALRR Blogs
Recent Posts
- AALRR’s 2024 Title IX Virtual Academy
- Unmasking Deepfakes: Legal Insights for School Districts
- How to Address Employees’ Use of Social Media
- How far is too far? Searching Students’ Homes and Remote Test Proctoring
- Making Cybersecurity a Priority
- U.S. Department of Education Issues Proposed Amendments to Title IX Regulations
- Inadvertent Disability Discrimination May Lurk in Hiring Software, Artificial Intelligence and Algorithms
- Students and Social Media – Can Schools Discipline Students for Off-Campus Speech?
- Fact Specific Analysis is Key when Restricting on Employee Expression
- Monitoring Students’ Online Activities
Popular Categories
- (55)
- (12)
- (81)
- (96)
- (43)
- (53)
- (22)
- (40)
- (11)
- (22)
- (6)
- (4)
- (3)
- (2)
- (3)
- (2)
- (4)
- (1)
- (1)
- (1)
- (1)
- (1)
- (1)
- (1)
Contributors
- Steven J. Andelson
- Ernest L. Bell
- William M. Betley
- Mark R. Bresee
- W. Bryce Chastain
- J. Kayleigh Chevrier
- Andreas C. Chialtas
- Georgelle C. Cuevas
- Scott D. Danforth
- Alexandria M. Davidson
- Mary Beth de Goede
- Anthony P. De Marco
- Peter E. Denno
- William A. Diedrich
- A. Christopher Duran
- Amy W. Estrada
- Jennifer R. Fain
- Eve P. Fichtner
- Paul S. Fleck
- Mellissa E. Gallegos
- Stephanie L. Garrett
- Karen E. Gilyard
- Todd A. Goluba
- Jacqueline D. Hang
- Davina F. Harden
- Suparna Jain
- Jonathan Judge
- Warren S. Kinsler
- Nate J. Kowalski
- Tien P. Le
- Alex A. Lozada
- Kimberly C. Ludwin
- Bryan G. Martin
- Paul Z. McGlocklin
- Stephen M. McLoughlin
- Anna J. Miller
- Jacquelyn Takeda Morenz
- Kristin M. Myers
- Katrina J. Nepacena
- Adam J. Newman
- Anthony P. Niccoli
- Aaron V. O'Donnell
- Sharon J. Ormond
- Gabrielle E. Ortiz
- Beverly A. Ozowara
- Chesley D. Quaide
- Rebeca Quintana
- Elizabeth J. Rho-Ng
- Todd M. Robbins
- Irma Rodríguez Moisa
- Brooke Romero
- Alyssa Ruiz de Esparza
- Lauren Ruvalcaba
- Scott J. Sachs
- Gabriel A. Sandoval
- Peter A. Schaffert
- Constance J. Schwindt
- Justin R. Shinnefield
- Amber M. Solano
- David A. Soldani
- Dustin Stroeve
- Constance M. Taylor
- Mark W. Thompson
- Emaleigh Valdez
- Jonathan S. Vick
- Jabari A. Willis
- Sara C. Young
- Elizabeth Zamora-Mejia
Archives
2024
2022
2021
2020
2019
2018
- December 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- January 2018
2017
- November 2017
- October 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
2015
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
2014
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
2013
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
2012
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012