United States: NLRB General Counsel Issues Guidance On Employee Electronic Signatures To Support Representation Petitions

Last Updated: September 9 2015
Article by Seth H. Borden

A lesser discussed provision of the Board's new "quickie" election procedures, effective April 14, 2015, asserted that the Board may accept employee electronic signatures as proof of the "showing of interest" filed with a representation petition.  This week, the General Counsel issued a guidance memorandum outlining the way the Board will treat such filings.

Memorandum GC 15-08, issued September 1, 2015, reviews the Board's standards for reviewing and confirming signatures to support the required "showing of interest"; explains why the Board will apply similar standards to electronic signatures; and, provides guidance on how those standards will be implemented.  Representation petitions filed with the Board require proof that at least thirty percent (30%) of the employees in an appropriate unit support the effort.

In sum, the General Counsel concludes:

... Regional Directors should accept electronic signatures as a means to support a showing of interest where, as with handwritten signatures, the electronic signature method chosen by the party provides the Regional Director with prima facie evidence (1) that an employee has electronically signed a document purporting to state the employee's views regarding union representation and (2) that the petitioner has accurately transmitted that document to the Region. As is the law now with respect to handwritten signatures, the documents submitted by the parties are presumed to be valid.

Per the specific guidance outlined in the memo, e-signatures submitted to establish the showing must include: the signer's name; email address or social media account; the signer's telephone number; the language to which the signer agrees; the date; and the employer's name.  The party submitting the signatures must submit a "declaration" confirming that the electronic signature is that of and by the signatory employee, and the content of the statement which the employee signed.  Finally, if digital signature technology is unavailable, the party must submit evidence that all of the required information was confirmed in a return electronic transmission to a personal address provided by the signatory employee. The memo suggests in footnotes – but does not require – that all of this information can be confirmed by more sophisticated systems like digital signature verification or IP address logging via dedicated website.

While the General Counsel claims these guidelines represent more stringent requirements than are currently enforced regarding paper signatures, it is hard to see how this system will not be more susceptible to fraud and abuse.  A fraudulent paper signature requires the relatively more difficult task of actual physical forgery. Any such forgeries can be challenged by review of employee handwriting and signature samples – which nearly all employers have in personnel files. With the widespread availability of free email and social media accounts, the practices of "catfishing" (i.e., creating phony online personas) or simply opening phony accounts in employee names can be done relatively quickly and at no cost.  To be sure, a diligent investigation could uncover evidence of this kind of fraud, but the General Counsel also explains:

As is now the case with handwritten signatures, an electronic signature submitted in support of a showing of interest that meets the requirements set forth herein will be presumed to be valid absent sufficient probative evidence warranting an investigation of possible fraud. Mere speculation or assertions of fraud are not now, and will not in the future, be sufficient to cause the Agency to investigate.

In any event, all these concerns were addressed in comments to the Board in response to its proposed rulemaking – and summarily dismissed in the final rule's publication.  It is unfortunate that the memo's footnotes demonstrate the Board's apparent familiarity with the types of technology available to mitigate the prospect of fraud, yet the loose parameters sketched out in the body of the guidance will do little, if anything, to ensure the trust and security the system should require.

Finally, while there are appeals pending to two lower court affirmations of the Board's election rules, the Board and the General Counsel have taken pains to lay out that this development simply reflects application of longstanding rules to evolving technology. As such, the pending litigation may have little impact on the Board's enforcement of these "new" guidelines.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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