Authored by Steve Holden. Published in the Sacramento Business Journal July 2012.
Emboldened by the ever-growing list of employee rights and/or bad advice, it has become commonplace for employees to refuse to sign documents presented by an employer. It occurs most frequently when the document deals with the employee’s poor performance, such as a disciplinary memo, but can also occur when the employer is distributing more mundane documents such as new policies or handbooks. Obviously, the refusal is not a positive interaction between the employee and employer. In the best case, it indicates a simple miscommunication. In the worst case, it indicates a broken relationship headed for litigation.
The negative impact of an employee’s refusal to sign can be avoided in most cases by adopting a four-step approach.
1. Determine the purpose for obtaining a signature
Is the employee being asked to sign the document only as acknowledgment that he or she has received it or is the signature required as part of an agreement between the employer and the employee?
If the purpose of having the employee sign the document is only for acknowledgement of receipt, consider whether the employee’s signature is actually necessary. This often will depend on the importance of the document. If you are simply notifying employees of routine tasks such as shutting down their computers at the end of each day or that the company will be closed for a holiday, consider foregoing the signature and have a supervisor create a list of employees who received the document.
However, if the employee’s signature demonstrates agreement to abide by an important policy or process, such as a policy prohibiting harassment or a binding dispute resolution process, it becomes more essential to having the employee sign the document. In this situation an employer should proceed to step two. 2.
2. Determine if demanding the signature is a lawful and reasonable directive
This step depends upon the content of the document and the wording associated with the employee’s signature.
California law prohibits employers from demanding that employees sign documents that are for an unlawful purpose or otherwise violate strong public policies. For instance, an employer may not ask employees to sign a document in which the employee agrees to never take any complaint over wages to the labor commissioner.
On the other hand, it is well within an employer’s power to require employees to acknowledge receiving communications from the employer.
If the purpose is simply acknowledgment of receipt, make sure that is clearly communicated next to the signature line. If the purpose is a binding agreement on the part of the employee, make sure the subject and terms of the agreement are permissible under the law. Once these content considerations are addressed and the document is properly drafted, the employer can proceed to step three.
3. Clearly communicate with employees about the document
Before presenting any document requiring a signature, it is advisable to explain to employees the content of the document and the purpose and effect of the required signature. For documents presented to a number of employees, the initial communication may be accomplished by holding a company or department meeting and training supervisors about the documents and how to address employee concerns.
For documents presented to an individual employee, a private meeting is advisable.
In either case, some level of personal, verbal communication is recommended along with an opportunity for employees to raise questions. It is also suggested to allow employees a reasonable amount of time to review the document without pressure before signing it. After the initial communication, if an employee still refuses to sign, consider holding a one-on-one meeting to have the employee explain why he or she refuses to sign the document. Often the reason is due to the employee misunderstanding the terms of the document. A one-on-one meeting allows the employer to clear up any misconceptions, address the employee’s concerns, get the signature and avoid the need for any disciplinary action.
4. Evaluate all the facts before taking disciplinary action
If an employee still refuses to sign after the one-on-one meeting, the employer has a range of options. The employee can be terminated for insubordination, the employer can document the employee’s obligations notwithstanding the refusal, or the employer can ignore the employee’s refusal to sign all together and carry on with business as usual. The best course of action will depend upon the facts surrounding the refusal. First and foremost, consider the legitimacy of the employee’s stated reasons and of the demand for a signature. The employer should take detailed notes of the meetings, recording the employee’s stated reasons for refusing to sign and what was explained to the employee.
The California Court of Appeals recently confirmed that an employee’s intentional refusal to obey an employer’s directive to sign for a document could qualify as misconduct under California law. An employee who has engaged in misconduct is disqualified from receiving unemployment benefits and will have little success in pursuing a wrongful termination claim. While demanding a signature acknowledging receipt of a company policy or disciplinary memo is a lawful and reasonable directive, employers should evaluate the situation before terminating the employee. Also, employers should make sure the communications and documentation show that the employee’s refusal was not the result of a misunderstanding or carelessness on the part of the employer.