What is the legal value of native electronic documents (that do not require signature by the parties)?
The majority of legislation generally recognizes the validity and probative value of documents that are natively electronic (i.e., created as electronic originals), subject to compliance requirements.
With respect to restrictions prohibiting the distribution and storage of electronic native documents, certain Canadian privacy legislation and common law principles protect employees from unauthorized collection, use or disclosure of “personal information.” The phrase “personal information” is generally defined as recorded information about an identifiable individual other than contact information which would enable an individual at a place of business to be contacted.
If personal information is included in native electronic documents, the employer may be expected to adopt security safeguards, including physical, organizational and technological measures, which are customary in its profession and appropriate to the sensitivity of the information. Examples of such measures may include restricting access to certain offices, training personnel, limiting access to information on a “need-to-know” basis, and using passwords and/or well-defined internal policies and practices.
The probative value of native electronic documents will be governed by the same federal, provincial and territorial evidentiary legislation, as well as any common or civil law principles, which govern electronic documents more generally. There are no legislative requirements specific to native electronic documents alone.
With respect to electronic paystubs, note that that the Canadian Payroll Association (CPA) has issued a document entitled Pay Statement Guidelines which provides that electronic pay statements can be produced and implemented as a replacement for paper pay statements provided that employees have confidential access to view and print them. The CPA also provides publically available lists of paystub legislative requirements and best practices on their website (http://www.payroll.ca/).
Led by PeopleDoc’s Chief Legal & Compliance Officer, the HR Compliance Assist team relies on a network of internal and external compliance experts and lawyers, including the global law firm Morgan Lewis, to provide clients with best practices and recommendations on topics such as HR document retention, employee data privacy, and HR electronic records. HR Compliance Assist also provides local compliance monitoring and alert services in select countries where PeopleDoc’s customers have employees. HR Compliance Assist is a service exclusively available to PeopleDoc customers.