Electronic authorisations across borders
The digital age has affected HR department paperwork in the form high-tech information systems and companies providing specialised paperless services. The migration to electronic records on intranets and in the cloud lessens the physical storage required by paper, and increases speed of delivery and receipt.
The digital age has affected HR department paperwork in the form high-tech information systems and companies providing specialised paperless services. The migration to electronic records on intranets and in the cloud lessens the physical storage required by paper, and increases speed of delivery and receipt.
However, one must consider the slower rate at which the law adapts to the rapid change in technology advances. For example, many international laws necessitate hard copy originals, notarisations, and signing witnesses.
Imagine a scenario in which two employees assented to reading a company code of conduct, one by electronic signature and one by wet ink. It is not a stretch of the imagination to understand why the second employee will be much more strongly held to his signature than the first one.
Not surprisingly, legal systems around the globe are adapting to the developments in the electronic workplace. Governments are passing international laws recognising electronic authorisations and even verifying identities across borders.
The issue is that these laws do not apply to the everyday human resource context. "Formal" electronic signatures are much less likely to appear on regular documents like a time card or code of conduct, and more often are used to seal a contract or a stock option agreement. HR departments want to know how they can secure electronic, yet binding, agreements across borders, when international laws clearly only support the legality of "advanced" signatures.
"Formal" Electronic Assents
These "advanced" statues are usually local, meaning the acceptance of the signatures depends upon the governments of the countries involved in the transaction. At this point, case law dominates in this sphere, rendering the likelihood of acceptance up to chance. This means that HR departments will use this method only for documents such as the ones mentioned above, like stock agreements and employment contracts.
"Informal" Electronic Assents
In most companies, there is widespread use of electronic signatures for documents such as shift requests, payroll registrations and job reassignments. Are these equally as binding as the formal signatures? Apparently, the answer to this question comes down to circumstance. It depends on the issue itself that was (not) assented to and even the ability of the company to prove or disprove the assent.
The issue also depends on risk tolerance. Employers need to make strategic choices about which documents they approve to be signed electronically, taking into account the probability something will be challenged in court. Clearly the best way to avoid this is to stick to wet ink signatures and to only allow the electronic signing of documents referred to in the local jurisdiction.
The proof problem turns out to a large issue for HR departments, especially when it comes to archiving. If a document is questioned in court, a lawyer will request proof of the signing, so employers need to determine how they will systematically do this.
For documents that may require hard copy proof at some point in the future, companies have started making electronic copies of documents that they later file with a court. However, once again, employers need to strategise which documents they will need to do this for, as they cannot send over a hard copy of every document containing an electronic signature. Also, in keeping electronic records in house, organisations need to be privy to data protection laws as access to these employee records needs to be restricted and monitored.
This article is based upon a piece by Donald Dowling in We Know Next.
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