From 2019 “revolution” in keeping employee records
Until 31st of December 2018 employee documentation (i.e. documentation regarding all matters related to the employment relationship and the personal files of employees) must be kept in a paper form. Every employer can additionally keep and gather, alongside the paper version, an electronic version. From 1st of January 2019 employee documentation will be able to be kept and retained only in electronic form. A regulation has been introduced into the Labour Code, according to which employee documentation kept and retained in electronic form is equivalent to employee documentation kept and retained in paper form (Article 9411 of the Labour Code; will come into force on 1st of January 2019). The legislator equalized both forms and left every employer the right to choose. It means, that the employer will be able to choose one of three solutions:
1) keeping employee documentation only in paper form, as before,
2) keeping employee documentation only in electronic form,
3) keeping employee documentation in paper and electronic form.
What is important, every employer can change the form of documentation retention (Article 948 of the Labour Code; will come into force on 1st of January 2019) from the paper version to electronic version and from electronic version to paper version. This requires the following obligations:
- change of the form of employee documentation from paper version to electronic version is done by creating a digital projection, in particular the scan, and providing it with a qualified electronic signature or a qualified electronic seal of the employer, or a qualified electronic signature of the person authorized by the employer, confirming the compliance of the digital projection with the paper document.
- change of the form of employee documentation from electronic version to paper version is done by creating a printout and providing it with the signature of the employer or a person authorized by him, confirming the compliance of the printout.
Shortening of the retention period of the employee documentation from 50 to 10 years.
According to the new Article 94 point 9b of the Labour Code, the employer will be obliged to keep the employee documentation for the period of employment, and for a period of 10 years, counting from the end of the calendar year in which the employment relationship has been terminated or expired, unless separate regulations provide longer retention period for employee documentation.
The way of retention of the employee documentation. The conditions, that the employer must meet to ensure that the employee documentation is properly secured
According to the new Article 94 point 9b of the Labour Code, every employer is obliged to retain the employee documentation in a way that guarantees its confidentiality, integrity, completeness and availability, in conditions that that do not cause damage or destruction during the employment period. As indicated in the justification to the draft of the amendment:
- confidentiality should be understood as restricting access to employee documentation only to the employer or persons authorized by him;
- integrity means maintaining a consistent structure of employee documentation, so that any change in the retained documents leaves a lasting trace;
- maintaining completeness means ensuring, that individual documents will be completely contained in one, selected by the employer, form of employee documentation;
- maintaining the requirement of availability of the employee documentation means keeping and retaining it on a carrier adapted to the changing technical environment. The documentation must be kept for 10 years from the moment of termination of employment and during this period the employer must guarantee the possibility of its reading and use. The employer must also guarantee such conditions for retention of the employee documentation so that it is not threatened with destruction or damage.
In the case of the re-employment, one should continue to keep the same records
In practice, employers, in the case of re-employment of the same employee, currently have to set up new employee records . From 1st of January 2019, according to the new Article 945 of the Labour Code, in the case of a new employment relationship between the former employee and the employer within 10 years from the end of the calendar year in which the previous employment relationship ceased, the employer will not be obliged to set up new employee documentation. In this case, he will continue to keep the employee documentation created in the past during the previous employment agreement. This solution is also significant facility for the employee. He will not have to submit again those documents that are already in his records.
 Issue No. 1995 Government draft of the Act on the amendment of the certain acts in connection with shortening the period of retention of employee records and their electronicisation, http://www.sejm.gov.pl/sejm8.nsf/druk.xsp?nr=1995