By David Thun on August 06, 2014 in Best Practices
Updated 3-11-19. Notaries working in an office setting are both public servants and private employees — which can make it very tricky to balance your duties as a Notary with your obligations to your employer. If you are one of these Notaries, here are some important facts you need to know.
Notarizing During Business Hours
Employers generally are allowed to control the work of their employees. State employment law forms the basis for the work relationship. However, state Notary law may prescribe specific rules directing Notary-employees and the notarizations they perform while at work. Some states have clarified this in various ways.
In California, the law allows a Notary and the Notary’s employer to enter into an agreement limiting the performance of Notary services to transactions that affect the business purposes of the employer during working hours. In exchange, the employer pays the costs associated with the commission of the Notary-employee. This agreement may also have a provision in it for the Notary to remit fees collected for notarizations performed on the job to the employer.
In Texas, a 2016 administrative rule clarifies that an employer may limit the notarizations Notary-employees perform at work. While not technically a law, in Oklahoma, an executive order achieves the same result. And, the Executive Office of the Governor of Florida states that employers have this right in its Governor’s Reference Manual for Notaries.
In the following states, Notary laws explicitly prohibit Notaries or employers of Notaries from limiting Notary services to customers or clients:
Arizona
Hawaii (except for Notaries in government service)
Iowa
Massachusetts
New Mexico
Notarizing Outside Business Hours
Some employers have tried to prohibit Notaries from performing notarizations when the Notary is off the clock. They mistakenly think that they are liable for the notarizations of Notary-employees performed during off-hours. While many states may allow an employer to dictate when an Notary-employee may perform notarizations while on the job, a Notary may perform a notarization for any member of the public on their own time — including lunch breaks.
Control Of A Notary’s Tools
Your commission, seal and journal are your property — even if the employer paid for them. That means you must keep your seal and journal under your control at all times and not surrender them to anyone, including an employer.
There are three exceptions:
Arizona allows Notaries working under limited circumstances to keep two journals — one for public records and one for nonpublic records protected by the attorney-client privilege or that are confidential pursuant to state or federal law. The journal containing nonpublic records is the property of the employer and, if the Notary leaves that job, the employer may keep the journal containing only nonpublic entries.
Oregon Notaries may sign an agreement with an employer allowing the employer to keep the Notary’s journal if the Notary leaves the employer’s service. The Notary must keep a copy of the agreement.
Tennessee Notaries who work for a financial institution subject to the Financial Records Privacy Act, perform notarizations during the scope of their employment and charge a fee, must provide access to their journal according to the requirements of the Financial Records Privacy Act or the federal Right to Privacy Act.
Apart from these exceptions, an employer may not take possession of a Notary’s seal and journal or give them to another employee, even if the employer paid for the tools or the Notary quits or is fired.
David Thun is an Associate Editor at the National Notary Association.