The document was an arbitration agreement, which Moss Bros. claimed that its employee, Ruiz, signed. However, Ruiz claimed he did not "remember" signing it. So, Moss Bros. had to establish that he did when it moved to compel Ruiz to arbitrate his wage-hour claims.
Moss Bros. adduced the declaration of its business manager, Mary K. Main, who was “required to be familiar with the generation and maintenance” of employee personnel records. Main summarily asserted that Ruiz “electronically signed” the 2011 agreement “on or about September 21, 2011,” and that the same agreement was presented to “all persons who seek or seek to maintain employment” with Moss Bros. or its affiliated dealerships and service/parts centers. Main did not explain how Moss Bros. verified that Ruiz, or other Moss Bros. employees, electronically signed the 2011 agreement.
The 2011 agreement is just over two pages in length. “Ernesto Zamora Ruiz” appears in print on the first page, under the title, “Employee Acknowledgment and Agreement,” and the phrases “Ernesto Zamora Ruiz (Electronic Signature)” and “9/21/2011 11:47:27 AM” appear in print on the third page, under the signature and date lines of the 2011 agreement.
In a supplemental declaration, Main testified that Ruiz had to log in using a unique user name and password.
The court of appeal decided that was not enough because Main did not "authenticate" the electronic signature. here is the standard for doing so:
As a result, the court found there was insufficient evidence of an agreement to arbitrate and upheld the trial court's denial of Moss Bros.'s petition to compel arbitration.
Yes, it may be that Moss Bros. failed to compel Ruiz to arbitrate due to a poorly drafted declaration, rather than some flaw in the electronic signing protocol. But litigators need proof that an employee signed handbook acknowledgements, training attendance forms, etc. Although an arbitration agreement was involved here, this decision applies to all sorts of electronically signed documents. The average manager has no idea how the electronic signing process works, cannot testify that he or she actually saw the employee at the computer electronically signing, etc.
Therefore, when implementing electronic versions of documents, employers must have their IT professionals build in ways to do so. For example, there could be an acknowledgment email sent to the employee, with a copy to the employer. Or the IT management could create a step-by-step explanation of how the system ensures that the name appearing on the electronic application is attributable to the actual person and not merely inserted later.
This case is Ruiz v. Moss Bros. Auto and the decision is here.
The court of appeal decided that was not enough because Main did not "authenticate" the electronic signature. here is the standard for doing so:
Civil Code section 1633.9 addresses how a proponent of an electronic signature may authenticate the signature—that is, show the signature is, in fact, the signature of the person the proponent claims it is. The statute states: “(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” (Civ. Code, § 1633.9, subd. (a), italics added.)Here, the court found that Main's testimony about the general procedures applicable to electronically signing the arbitration agreement was insufficient. The court provided some hints as to what would have been enough:
Main did not explain that an electronic signature in the name of “Ernesto Zamora Ruiz” could only have been placed on the 2011 agreement (i.e., on the Employee Acknowledgement form) by a person using Ruiz’s “unique login ID and password”; that the date and time printed next to the electronic signature indicated the date and time the electronic signature was made; that all Moss Bros. employees were required to use their unique login ID and password when they logged into the HR system and signed electronic forms and agreements; and the electronic signature on the 2011 agreement was, therefore, apparently made by Ruiz on September 21, 2011, at 11:47 a.m. Rather than offer this or any other explanation of how she inferred the electronic signature on the 2011 agreement was the act of Ruiz, Main only offered her unsupported assertion that Ruiz was the person who electronically signed the 2011 agreement. In the face of Ruiz’s failure to recall electronically signing the 2011 agreement, the fact the 2011 agreement had an electronic signature on it in the name of Ruiz, and a date and time stamp for the signature, was insufficient to support a finding that the electronic signature was, in fact, “the act of” Ruiz. (Civ. Code, § 1633.9, subd. (a).) For the same reason, the evidence was insufficient to support a finding that the electronic signature was what Moss Bros. claimed it was: the electronic signature of Ruiz. (Evid. Code, § 1400, cl. (a).) This was not a difficult evidentiary burden to meet, but it was not met here.
Yes, it may be that Moss Bros. failed to compel Ruiz to arbitrate due to a poorly drafted declaration, rather than some flaw in the electronic signing protocol. But litigators need proof that an employee signed handbook acknowledgements, training attendance forms, etc. Although an arbitration agreement was involved here, this decision applies to all sorts of electronically signed documents. The average manager has no idea how the electronic signing process works, cannot testify that he or she actually saw the employee at the computer electronically signing, etc.
Therefore, when implementing electronic versions of documents, employers must have their IT professionals build in ways to do so. For example, there could be an acknowledgment email sent to the employee, with a copy to the employer. Or the IT management could create a step-by-step explanation of how the system ensures that the name appearing on the electronic application is attributable to the actual person and not merely inserted later.
This case is Ruiz v. Moss Bros. Auto and the decision is here.
