Employee files in electronic form - how to keep them?

Service

From January 1, 2019, new rules for the storage of employee files came into force. These changes are related to the entry into force of the Act of 10 January 2018 amending certain acts in connection with the shortening of the storage period for employee files and their electronicisation, as well as with the Regulation of the European Parliament and of the Council (EU) 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 / EC (General Data Protection Regulation). How long is the record keeping period and how to keep employee files in electronic form? Let's check it out!

How to keep employee files in electronic form?

Each employer is obliged to keep personal files for employed employees. Until now, these files have been kept in paper form. Starting from the beginning of 2019, the employer can decide whether he wants to keep employee files in electronic form or in a paper version (as before). Undoubtedly, this change meets the expectations of entrepreneurs, although some provisions of the act raise doubts as to their proper interpretation.

The provision of art. 94 point 9a of the Labor Code
The employer is obliged in particular to:
- keep and store in paper or electronic form documentation on matters related to the employment relationship and personal files of employees (employee documentation).

Employee files in electronic form will be equivalent to files kept in a traditional, paper form. Due to the need to use safeguards related to the GDPR, it seems that electronic employee files will be a great help for employers.

Electronic employee files are equivalent to employee documentation kept in traditional paper form.

Personal files currently consist of three parts:

  • part A - documents related to the recruitment process;

  • part B - documents related to the course of employment;

  • part C - documents related to termination of employment.

In accordance with the introduced changes, part D was added to the personal files, which contains the documents previously stored in part C. In the new version of the files, part C contains documents relating to working time.

To effectively keep employee records in electronic form, the employer will need a qualified electronic signature or qualified electronic seal.

An important issue related to the digitization of employee files is the possibility of storing personal files of employees in a mixed form - both electronic and paper. According to the position of the Ministry of Family, Labor and Social Policy expressed in the reply of 8 August 2018 to the parliamentary question no. 7753 on new provisions on employee documentation, there are no obstacles for the employer to keep documents partly in electronic form and partly in paper form.

How to change the way of keeping files from paper to electronic form?

Pursuant to the provisions of the act, the employer may change the way of keeping records from paper to electronic and vice versa.

The provision of art. 94 of the Labor Code
§ 1. The employer may change the form in which he keeps and stores employee documentation.
§ 2. Changing the form of employee documentation from paper to electronic is made by making a digital representation, in particular a scan, and affixing it with a qualified electronic signature or a qualified electronic seal of the employer or a qualified electronic signature of a person authorized by the employer, confirming the compliance of the digital representation with the paper document.
§ 3. Changing the form of employee documentation from electronic to paper is made by making a printout and affixing it with the signature of the employer or a person authorized by him, confirming the compliance of the printout with the electronic document.

In the event of changing the method of keeping files from paper to employee files in electronic form, it is necessary to:

  • making a digital mapping of files, e.g. a scan;

  • affixing the digital version of the file with an electronic signature or an electronic seal.

It follows from the above-mentioned provisions that scanning the documents alone is not enough. In order to digitize files correctly, it is necessary to use an electronic signature.

Changing from electronic to paper form is easier, because it only requires printing documents stored in digital form and signing them by the employer or another person authorized by him.

The employer is obliged to inform employees about the way of keeping the files and about changing the way of keeping the files, if he has decided to take such a step.

What is the storage period for employee files?

The second significant change introduced by the aforementioned act is the shortening of the storage period for employee files.

So far, this issue has not been clearly regulated. In most cases, employees' personal files were kept for 50 years, as required by pension legislation. Part of the employee documentation (e.g. schedules, schedules, holiday cards) was stored for three years, which resulted from the provisions on the limitation period for claims under the employment relationship.

The employer will be required to keep employee files for a period of 10 years. This time will be counted from the end of the calendar year in which the employment relationship was terminated or expired.

Currently, from January 1, 2019, the employer is obliged to store personal files for the period of employment of the employee and additionally for a period of 10 years, counted from the date of termination of employment. Importantly, the manner of storing documents must meet the conditions specified in the Act:

  • the storage method must guarantee the confidentiality of the documents;

  • the documents should be kept in a complete manner ensuring the integrity of the files;

  • the storage method should not interfere with the availability of documents;

  • the method of storage must ensure protection against damage or destruction.

It is worth pointing out that if the employee documentation kept by the entrepreneur may constitute evidence in court proceedings, and the employer is a party to these proceedings, the documents must be kept until the final conclusion of the court case (but not shorter than the period of 10 years indicated above). If the employer is not a party to the trial, but has obtained information about the pending proceedings, the period of keeping the documents is extended by 12 months. After this deadline, the employer informs the employee about the possibility of collecting the files within 30 days. If the employee does not collect the documents, the employer may destroy them.

When can an employer destroy an employee's file?

The aforementioned act also imposes other obligations on the employer. Pursuant to the amended provision of Art. 94 of the Labor Code, in the event of termination or expiry of the employment relationship, the employer is required to issue, together with the employment certificate, a document containing information on:

  • the period of storage of employee documentation;

  • the employee's ability to collect employee documentation by the end of the calendar month following the expiry of the storage period for employee documentation;

  • destruction of employee documentation in the event of failure to collect it.

After the expiry of the indicated period, the entrepreneur should destroy the documents in a way that prevents their re-reproduction within 12 months after the expiry of the period for collection of files.

In addition, the employer is required to notify the employee of the possibility of receiving the previous version of the file within 30 days from the date of notification. If an employee has died, the right to receive documents is due to:

  • children of the employee, children of his spouse, adopted children;

  • grandchildren, siblings and children accepted for upbringing and maintenance before reaching the age of 18, with the exception of children accepted for upbringing as part of a foster family or family orphanage;

  • the spouse of the deceased employee;

  • parents, including stepfathers, stepmothers and adoptive parents.