eSignature Legality for Arbitration Agreement in Mexico - Simplify Legal Documentation

How to eSign a document: eSignature legality for Arbitration Agreement in Mexico

foreign [Music] you want to implement an arbitration agreement and given that the class action wave is enforceable that's a huge advantage and most employees want to implement their arbitration agreements based solely on those grounds you want to ensure that the application agreement is enforceable to begin with it has to be drafted in a way that the court will enforce by taking specific measures to ensure it will stand up to Legal scrutiny by challenged when challenged by plaintiffs the agreement should be legible and a standalone document doubles spaced and prominently advised employees that they are giving up certain rights now these are sort of you would think that they are sort of obvious things to note but it's very important that when you have an arbitration agreement it's very prominent it's legible it's double spaced and things are highlighted or both to the extent that they nest that need to be we do not recommend that in you include an arbitration agreement in your employee handbook you want the agreement to be enforceable so it should be signed by both the employee and the employer to demonstrate that both sides mutually consented to the agreement um the employee handbook and its acknowledgment form typically state that the handbook does not create a contract for employment so that's you know one reason why you don't want to include the agreement in the employment uh handbook so if you insert in a mandatory arbitration agreement language in the handbook it may also contradict your ad will employment statements in the handbook while opening the door to challenge the enforceability of the agreement itself similarly employers generally do not want their handbooks to create a contractual right in part on the part of the employees and should therefore avoid to buying an employee through a policy in the handbook another benefit of using a standalone arbitration agreement is that the arbitration agreement has to be entered into a public record to enforce the agreement so this is where a employee challenges the enforceability of the arbitration agreement um and we're still in court it's a public forum and generally the arbitration agreement itself is an exhibit and entered into exhibit and as an Evidence and if you have it in your handbook you don't want the entire handbook to be part of the record um and so that's that's why we significantly and always advise our clients that the arbitration agreement should be a standalone document um the next is if the arbitration agreement is in English and a significant or at least 20 of your population or even if you are presenting it to an employee who who you know may not be able to understand the arbitration agreement consider translating the agreement um into the language that they um speak or understand um next you want um the arbitration agreement to uh besides so electronic signatures are a good way of making sure that the arbitration Agreements are signed and you want to prove that the employee has signed the agreement so while electronic signatures are acceptable employers must review how the electronic signatures are recorded and ensure that this can be documented in a manner that will be upheld in when enforcing the arbitration agreement so a lot of challenges that we're seeing now to arbitration agreements number one especially if they if they're electronically signed we often have plaintiffs claiming that it's not their signature they never signed it electronically so that's where we need to understand and have somebody from an employer from the employer the representative who's there and can very well explain the procedure that the employer has implemented to have these doc is electronically signed and whether it's you know the employee creates their own ID and a password that only the employee and the employee is aware of it's a unique ID and password no one else has access to it a link is sent to the employees they click on the link and then that's how they review and sign the documents so everything that's in the background sort of um in in the electronic Discovery phase all of this information will be handy and we need to be able to obtain that when it becomes necessary to enforce the arbitration agreements and we're seeing this we're seeing a lot of challenges to electronic signatures and we're having our clients by declaration exactly go through what the process is and why that this electronic signature in fact belongs to the plaintiff we've even seen courts having evidential hearings now because you know there's an electronic signature and they can't decide whether based on the Declarations itself they can't decide whether they should believe the employer's witness who's saying that this is in fact a plaintiff's electronic signature versus whether the plaintiff it themselves you know electronically executed the agreement now when you're having electronic signatures to the agreement it's even more important if you have somebody who doesn't speak English uh that you have procedures in place to show that even though an individual wasn't speaking Spanish or it wasn't Savvy in speaking English it was in fact them who you know clicked on the link that was sent to them and signed the arbitration agreement and you want to include the Spanish version for them to sign in the package that they are reviewing you want to give the employees an opportunity to read the agreement and be able to ask questions before they sign it so oftentimes one of the disadvantages we have with the electronic signatures where where an employee is given the entire hand a new higher package for example and they're just log on and they're just going through and just clicking for their signatures oftentimes we'll see the timestamps for the signatures are literally you know within seconds and this especially becomes problematic if an employee is claiming that they don't speak Spanish well they can say that you know they were just sitting there with their employer at the time they were hired they just went through and told were told to just sign these documents without even an opportunity to ask any questions so those are things that employers should keep in mind especially when you have well actually whether it's electronic or hard copy signatures you want to always make sure that when questioned you can defend that the employee did in fact have an opportunity to review you and ask questions before signing the agreement employers should always give a copy of the agreement to the employees typically we would we like to include the language in our agreements that we draft that the employees are free to free to take the agreement and have a lawyer review if they wish we also include some language about the opt out time that they have even after they decide the agreement but actually I think we have kind of moved away from that because that that is not necessarily required anymore but that if you have that opt out language it's beneficial and make sure you always give the employee assigned copy of the arbitration agreement now everything that I just discussed I think comes down to training your supervisors in HR about the agreements about implementing these agreements and making sure that they follow up to ensure that all parties have signed the arbitration agreement there are times when we have arbitration agreements that are challenged because they have a signature line for the employee and a signature line for the employer's representative however that signature is perhaps missing and you know there's an argument that the employer never signed it and if they employ it you know if the arbitration agreement did not call for the employer's signature if it was that it would if it was the material to the arbitration agreement then why is there a signature line that is blank it should have never even had a signature line for the employer but so in those circumstances you know it's it's it's important to ensure if the arbitration agreement is to be valid make sure every every party all parties involved have signed the agreement you want to implement a system to track who has signed and who has not signed the arbitration agreement now this is especially important when we are facing let's say a class actual lawsuit because of the waiver we want to be able to track easily and be able to keep um get those numbers and those arbitration agreements be able to gather them who are the employees that are potentially part of the class that actually sign their signed an arbitration agreement with the waiver and those that may not have signed it including you know anyone that may have opted out out of the agreement after they signed it um next um you know processing storage and retrieval so again implementing a procedure to securely store signed arbitration agreements this can be done manually or through an electronic system but it needs to be audited routinely to ensure that the Agreements are stored in a usable format are backed up and that appropriate people have access to the saved documents we are also running into problems actually where I've had two occasions where the client cannot find arbitration agreement that were signed or we can't determine whether these people these plaintiffs actually sign the arbitration agreements because the employer can't even find you know part of their file and it's not and and these are not employees that were that worked for the client a long time ago these are actually recent happenings and uh this is a client that actually implements arbitration agreement or do you have their employees have signed the agreement but for some reason we're not able to find some arbitration agreements filed by at least three plaintiffs um and um that's where storing these agreements and these documents um in a in a proper manner is is very very important and also this becomes important when we have to produce documents produce these arbitration agreements in Discovery um so being able to access it quickly and easily is um is a good practice to have and also if you are rolling out an arbitration agreement a disclosure of a pending class action and representative claim has to be included in the arbitration agreement so if you have pending class sections or quagga representative claims and you have employees that are already working and you are thinking about implementing arbitration agreements those disclosures must be made in the arbitration agreement another key thing to remember is once you are in arbitration it's very important to pay the arbitration fees very timely so there's case lawn now that requires employers to ensure that they pay these fees which can be significant in a very timely and quick Manner and if these fees are not paid immediately in a in a timely manner plaintiff's attorneys can actually file a motion and take the case out of arbitration and compel the employer to litigate it in court so that's why it's very important to make sure that you pay the fees Timely and finally if you have arbitration agreements make sure that you have a regular legal review of those agreements bio employment Council since arbitration arbitration provisions and employment are always being challenged different Provisions within an arbitration agreement is always being challenged and there is always legal developments that are coming down so you want to make sure that at least at least once a year your arbitration agreement should be reviewed by your legal counsel to ensure that it is enforceable [Music] foreign [Music]