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All in a Day's Work® - Insights on Labor & Employment Law

The Board goes digital - electronic signatures are "A-OK"

On Dec. 15, 2014, the National Labor Relations Board (Board) adopted a final rule, in which it held that electronic signatures may be used in support of a “showing of interest.”

The “showing of interest” requirement mandates that labor organizations and individual petitioners show they have the support of at least 30% of a bargaining unit before an NLRB-supervised election will be held or before a decertification election. A union, for example, relies upon written petitions and authorization cards to establish it has the necessary support to designate the union as the signers’ agent for collective bargaining purposes. On the other side, an employee relies upon co-workers’ signatures to support a decertification petition (i.e., to vote to oust a union).

On Oct. 26, 2015, the Office of General Counsel issued a guidance memorandum (Memorandum) establishing procedures and guidelines for acceptance of electronic signatures, including the information that must be submitted with the electronic signatures and mandating that a party submitting an electronic signature submit a declaration. The procedures are effective immediately. Unlike pen & paper signatures, electronic signors must supply contact information which will allow the Board to promptly investigate forgery or fraud. Sample declarations and signature confirmations are provided for reference. Practically, this means that unions and petitioners may use electronic means to solicit and accept signatures.

Notably, “signature” is broadly defined in the Memorandum to include various forms of electronic identification, including e-mail and internet/intranet sign-up methods.

Considered in light of the Board’s decision in Purple Communications—that employees may use an employer’s e-mail system for union organizing efforts during non-worktime—it is likely that the Board could take the position that employers must allow use of their intranet systems for these purposes.

October 28, 2015

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