Legal Framework for Electronic Archiving
Although some countries require certain types of documents to be kept and archived in their original paper form, for most categories of documents, including HR-related records, there is no such requirement, and it is generally acceptable to use electronic versions of paper records (i.e., scanned copies of paper originals) during most government agencies’ inspections and audits or in court proceedings.
The evidential or probative value of electronic versions of paper records may be more easily challenged before a court than it would be for the originals. This is mainly because the original records could be tampered with or changed before being scanned, and, unless proper technology has been used (e.g., encryption and timestamping), it may not be easy to detect such changes from a scanned copy. In specific situations, it may be good practice for employers to retain archives of paper originals in the event such originals would be requested by a specific investigator, auditor, judge or authority.
Are electronic scanned copies of paper originals legally valid?
Yes, an electronic scanned copy of a paper original has the same validity as a hard-copy in Chile. The courts usually grant a hard-copy (and by extension an electronic scanned copy) the same value as paper originals. However, this is assessed on a case by case basis, and some documents should be presented in original or duly legalized form.
Are there any legal requirements for electronic archiving systems (EAS)?
Although there is no specific regulation for electronic archiving, the Labor Board has established various requirements for implementing an electronic process of labor documentation (Ruling No. 789/015, 16.02.2015). Electronic archiving systems should be able to:
- allow the labor inspector a direct consultation of the information via Internet, from any computer of the Labor Board;
- consider a security measure allowing the revision said above to be carried out without impediment or restriction, either by date, volume, type of document, or any other cause that prevents or limits its practice. This requirement involves the possibility of carrying out the inspection processes without having to have the authorization of the surveilled employer;
- allow the same consultation and form of access previously indicated from computers of the surveilled employer, in the workplace; and,
- allow the printing of labor documentation, and its certification through simple or advanced electronic signature, if applicable, depending on the legal nature of the document and the effects that it should produce.
HR Best Practices: Scanned electronic copies of paper originals are permitted in Chile. That said, it is not possible to guarantee that all paper documents can be destroyed. Indeed, the acceptance of digital copies remains subject to the discretion of the judge. Consider the potential risk associated with each type of record and whether a paper copy could be necessary if questioned in court, prior to destroying paper originals. In addition, follow general best practices to ensure the veracity of the record throughout and after the scanning process.
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.