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DEPARTMENT OF LABOR

The Department of Labor (DOL) administers and enforces more than
180 federal laws. These mandates and the regulations that implement
them cover many workplace activities for about 10 million employers and
125 million workers.

PUBLIC LAW 108-390 - ELECTRONIC SIGNATURE ON FORMS I-9 - (online here)

U.S. Immigration and Customs Enforcement (ICE) and the Department
of Homeland Security (DHS) have received inquiries from many employers
regarding the availability of electronic Employment Eligibility
Verification Forms (Form I-9). Employers have expressed their
frustration with being required to keep paper forms or to store the
forms on microfilm or microfiche when all other aspects of their
business have been automated.

On April 28, 2005, a new law will take effect allowing employers to sign and store Forms I-9 electronically.

On October 30, 2004, the President signed legislation into law (Public Law 108-390)
authorizing employers to retain Forms I-9 in electronic format, in
addition to the current choices of paper, microfilm or microfiche. The
legislation also authorizes attestations on the Form I-9 to be
manifested by an electronic signature. The legislation prescribed an
effective date of April 28, 2005, or the effective date of implementing
regulations, whichever occurred first.

SECTION 1. IMPROVEMENTS TO EMPLOYMENT VERIFICATION SYSTEM.
(a) IN GENERAL.--Section 274A(b) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)) is amended--

(1) in paragraph (1)(A), by inserting before ``A person or
entity has complied'' the following: ``Such attestation may be
manifested by either a hand-written or an electronic signature.'';
(2) in paragraph (2), by adding at the end the following: ``Such
attestation may be manifested by either a hand-written or an electronic
signature.''; and
(3) in paragraph (3), by inserting ``a paper, microfiche, microfilm, or electronic version of'' after ``must retain''.

(b) EFFECTIVE DATE.--The amendments made by subsection (a) shall take effect on the earlier of--

(1) the date on which final regulations implementing such amendments take effect; or
(2) 180 days after the date of the enactment of this Act.

 

OCCUPATIONAL SAFETY AND HEALTH (OSH) ACT

The Occupational Safety and Health (OSH) Act is administered by the Occupational Safety and Health Administration (OSHA).
Safety and health conditions in most private industries are regulated
by OSHA or OSHA-approved state programs, which also cover public sector
employers. Employers covered by the OSH Act must comply with the
regulations and the safety and health standards promulgated by OSHA.
Employers also have a general duty under the OSH Act to provide their
employees with work and a workplace free from recognized, serious
hazards. OSHA enforces the Act through workplace inspections and
investigations.

In a letter from the Directorate of Enforcement Programs to the DaimlerChrysler Corporation on April 10, 2000 (available here),

OSHA (Occupational Safety and Health Administration) training
standards generally require the employer and trainers to sign a
certification record which includes the identity of the person(s)
trained; signatures of the employees are not required. ... OSHA would have no objection to the use of an electronic signature pad to satisfy the certification requirements.

In a letter from the Directorate of Enforcement Programs August 14, 1997 (available here),

A search of all OSHA standards found that there is no
standard that requires the employer to obtain the employee's signature.
Instead, most OSHA standards concerning training require the employer
and trainers to sign a certification record which includes the identity
of the person(s) trained.

EMPLOYMENT AND STANDARDS ADMINISTRATION (ESA) OFFICE OF LABOR-MANAGEMENT STANDARDS (OLMS)

ESA now enables union officers in 14,000 labor unions across the
country to sign and submit their annual reports electronically. Union
officers use a digital signature and submit the report over the
Internet.

Every labor organization subject to the Labor-Management
Reporting and Disclosure Act of 1959, as amended (LMRDA), the Civil
Service Reform Act (CSRA), or the Foreign Service Act (FSA) must file a
financial report, Form LM-2, LM-3, or LM-4, each year with the Office
of Labor-Management Standards (OLMS) of the U.S. Department of Labor's
Employment Standards Administration. These laws cover labor
organizations that represent employees who work in private industry,
employees of the U.S. Postal Service, and most Federal government
employees.

These forms (LM-2, LM-3, LM-4) can be electronic filled out and
submitted to the Department of Labor using the OLMS Electronic Forms
Software (available here)

These forms can be saved in a varity of formatts (PDF, XML) that
can be sent through PrivaSign and allow for union officers to capture
internal signatures on forms before being sent to the DOL.

 

ELECTRONIC SIGNATURES AND THE COPELAND ACT

From a letter to the Department of Transportation on November 12, 2004 (online here)

Current law establishes that the proper use of electronic
signatures on certified payrolls and related compliance statements
satisfies the requirements of the Copeland Act (29 CFR 3.3 and Part 5)
and its implementing regulations. Those signatures carry the same legal
effect as handwritten signatures.

Copeland Act

The Copeland Act prohibits inducing

by force, intimidation, threat of procuring
dismissal from employment, or otherwise, any person employed in the
construction or repair of public buildings or public works, financed in
whole or in part by the United States, to give up any part of the
compensation to which that person is entitled under a contract of
employment. (18 U.S.C. 874)

Section 2 of the Copeland Act further requires "each contractor
and subcontractor to furnish a weekly statement with respect to the
wages paid each employee during the preceding week." (40 U.S.C. 3145
(a) ; formerly 40 USC 276(c)).

The statute's implementing regulations provide, in relevant part, that each covered contractor or subcontractor

shall furnish each week a statement with respect
to the wages paid each of its employees engaged on [covered] work . . .
during the preceding weekly payroll period. This statement shall be
executed by the contractor or subcontractor or by an authorized officer
or employee of the contractor or subcontractor who supervises the
payment of wages, and shall be on form WH 348, "Statement of
Compliance", or on an identical form on the back of WH 347, "Payroll
(For Contractors Optional Use)" or on any form with identical wording.
(29 CFR 3.3(b))

See also 29 CFR 5.5(a)(3)(ii)(A) (requiring regular submission
of payroll copies to the appropriate federal agency). The regulations
further specify as follows:

Each payroll submitted shall be accompanied by a
"Statement of Compliance," signed by the contractor or subcontractor or
his or her agent who pays or supervises the payment of the persons
employed under the contract. [1] 29 CFR 5.5 (a) (3) (ii) (B) (emphasis added).

While the Copeland Act does not require that the "weekly
statement" be signed, the implementing regulations do require a signed
"statement of compliance." However, the regulations do not specify that
the signature should be "handwritten." In addition, Wage and Hour's
Form WH-347 also does not contain any language prohibiting electronic
signing. See 29 CFR 5.5(a)(3)(ii)(C) (authorizing the use of Form
WH-347 to satisfy the "statement of compliance" requirement).
Furthermore, the Department is aware of no decision by the
Administrative Review Board or any federal court addressing the issue
of whether the Copeland Act requires a handwritten signature on the
contractor's compliance statement. Thus, there is nothing in the
Copeland Act, its implementing regulations, or the caselaw expressly
prohibiting the use of electronic signatures as a valid means of
compliance with the Copeland Act's reporting requirements.

Supporting Legislation

Recent legislation authorizes and directs federal agencies to
accept the use of electronic signatures. Government regulatory and
enforcement activities, such as those under the Davis-Bacon and Related
Acts, are generally subject to the Government Paperwork Elimination Act
(GPEA), Pub. L. 105-277, 112 Stat. 2681 (1998) (codified at 44 U.S.C.
3504, note), which requires, when practicable, that Federal agencies
use electronic forms, electronic filing, and electronic signatures to
conduct official business with the public. In section 1707, the GPEA
states, in relevant part, that

[e]lectronic records submitted or maintained in
accordance with procedures developed under this title . . . or
electronic signatures or other forms of electronic authorization used
in accordance with such procedures, shall not be denied legal effect,
validity, or enforceability because such records are in electronic
form. (44 U.S.C. 3504, note.)

Additionally, the Electronic Signatures in Global and National
Commerce Act (E-Sign Act), Pub. L. No. 106-229, 114 Stat. 464 (2000)
(codified at 15 U.S.C. 7001, et seq.), which applies to commercial
transactions between the Government and private entities, similarly
provides that

a signature, contract or other record . . . may
not be denied legal effect, validity, or enforceability solely because
it is in electronic form; and . . . a contract . . . may not be denied
legal effect, validity, or enforceability solely because an electronic
signature or electronic record was used in its formation. (15 U.S.C.
7001(a)(1) and (2) )

In support of these laws, the Office of Management and Budget
(OMB) offers extensive guidance to assist federal agencies in the use
of electronic forms, filing, and signatures with which to conduct
official business. See e.g., http://www.whitehouse.gov/omb/fedreg/gpea2.html (OMB guidance to agencies on implementing GPEA); www.whitehouse.gov/omb/memoranda/m00-10.html (same); www.whitehouse.gov/omb/memoranda/esign-guidance.pdf (.pdf, 60 kb) (OMB guidance on E-Sign Act); www.whitehouse.gov/omb/memoranda/m00-15.html (same).

Record Retention

While the implementation of systems with which to accept
electronic records has been largely left to the discretion of the
federal agency, for purposes of the Copeland Act and the Davis-Bacon
and Related Acts, agencies should be reminded that, in accordance with
the Reorganization Plan No. 14 of 1950, reprinted in 5 USC Appendix,
and in 64 Stat. 1267, they continue to act as the first level of
enforcing authority for ensuring that appropriate records are
maintained by the contractor and the employees are compensated in
accordance with the Davis-Bacon Act. See 29 CFR 5.6. Moreover, because
the use of such records may be required for litigation purposes, a
reliable means of retrieving compliance documents collected and stored
electronically should be included in any such methodology or
arrangement.

In addition to filing requirements, contractors continue to
have an obligation to retain records. The regulations state that:
"Payrolls and basic records relating thereto shall be maintained by the
contractor during the course of the work and preserved for a period of
three years thereafter for all laborers and mechanics working at the
site of the work . . . ." 29 CFR 5.5(a)(3)(i). Such records shall
contain the name, address, and social security number of each such
worker, his or her correct classification, hourly rates of wages paid
(including rates of contributions or costs anticipated for bona fide
fringe benefits or cash equivalents thereof . . .), daily and weekly
number of hours worked, deductions made and actual wages paid. Id. The
use of electronic signatures in no way negates the record keeping
requirements and responsibilities outlined above.

Conclusion

Pursuant to the pertinent provisions of the Copeland Act and
the GPEA, described above, accurate electronic signatures are
sufficient for compliance purposes under the Copeland Act. However, all
parties are reminded of the responsibility to ensure the accuracy of
the electronic signature process, and the proper retention and
accessibility of the resulting electronically transmitted documents.