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HR Esq

When Your Employee Won't Sign

Devora Lindeman
Contributor: Devora Lindeman
Posted: 08/07/2011

What should you do when an employee won’t sign certain documents you present?

What an employer likely should do in that situation, and what legal impact the refusal to sign may have, if any, depends on the document the employee refused to sign. Here are suggestions as to how to handle the following situations:

Employee Handbook or Policy: If an employee refuses to sign the acknowledgement form for a new or updated Employee Handbook, or a stand-alone policy, as with any such refusal, first find out why. What is the employee concerned about? Maybe the employee’s refusal is based on a concern you can address with simple communication. Know, however, that the sole purpose of the form (and the signature) is to be able to prove in the future, should the company ever need to do so, that the employee received the handbook or policy. This can become a vital document should the employee ever assert a discrimination or harassment claim against the company, or be terminated for violating company policy. The employee’s refusal to sign the form, however, will likely not have the impact the employee believes it will. For example, the employee’s refusal to sign does not give the employee license not to follow the company’s policy. It also does not mean that the employee is not at will (as one employee tried to argue). In short—all it means is that the employee refused to sign a piece of paper. Should that happen, don’t make a big deal about it. Simply take the paper back and write on it (not necessarily in the employee’s presence): "Presented to [name] on [date] and [name] refused to sign." Then sign your name (and print your name if your signature is illegible), write the date, and file the form in the employee’s personnel file. That likely will suffice to prove that the employee was given the handbook or policy. A witness to this could be helpful.

Disciplinary Memo:
The reason employees need to sign disciplinary memos and warnings is so the company can prove that a copy was given to the employee. Above the employee’s signature line should say only "I have received this document." You don’t need to get the employee to sign off that they understood it, or will improve their performance, or will stop doing XYZ. They only need to sign that they got it. If the employee refuses to sign it, sign and date it yourself, as noted above, indicating that the employee refused to sign, and file it in the employee’s personnel file. (A print-out of a disciplinary memo with no one’s signature on it makes a poor legal exhibit in comparison.)

Performance Review:
Performance reviews should be treated the same as disciplinary memos, except that it is generally prudent to have a section for employees to write "comments" should they want to add something to the review. In no case should the employee be permitted to write anywhere but the comment section. If they need more space, provide another sheet of paper.

Confidentiality or other Employment Agreement:
Employers may present Confidentiality, non-compete, non-solicitation, arbitration or other similar agreements to employees either at the start of employment, or mid-employment when forms are being newly implemented or prior forms are being modified. Presuming your company is in a state that does not require additional consideration for a mid-employment-term agreement, it would be permissible to require that it be signed at any time. Also presuming that your employee is at will, you can terminate an employee (or not continue to on-board a new employee), for an unwillingness to sign such an agreement. If the agreements are conditions of employment, it is generally prudent to mention them in an offer letter, but that is not necessarily legally required. If employees refuse to sign one of these forms, you have three choices (a) insist they sign and if they won’t (in most states), let them go; (b) let them stay employed without the form being signed [probably not a good idea]; or (c) ask the employees what they object to and modify the agreement if your company can live with the modification. If you can’t live with the modification the employee insists on, see (a) or (b). If the modification is minor, it may be prudent to make it. Doing so may make the agreement more enforceable because the employee had an opportunity to negotiate its terms.

Severance Agreement:
When employees are presented with severance agreements, it generally should be clear how much time the employee has to consider the offer. Once the consideration period is over, the offer is considered expired. If employees simply do not sign, it may be prudent to call to see if the employee would like more consideration time. If the employee refuses to sign—there may be a lawsuit on the horizon. In either case, it is likely prudent to consult with an employment lawyer who represents companies in these situations and is familiar with the law of your jurisdiction and can provide guidance on your particular situation. Under no circumstances should an employee be forced or pressured to sign a severance agreement—this can affect your ability to legally enforce its terms.

When in doubt, call your employment lawyer. Each of the above situations may have legal implications for your company depending on the situation and on the employee’s reason for refusing to sign the document. Getting legal guidance early on can save you later headaches.

Devora Lindeman
Contributor: Devora Lindeman
Posted: 08/07/2011