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?
In China, there are no specific laws or regulations for electronic archiving of HR records so far. However, the Archives Law of the People’s Republic of China (the Archives Law, revised 2016) governs the management of archival documents (not limited to paper documents) by institutions, companies and other entities. The Archives Law generally provides that a company should manage all of its archives in a scientific manner and ensure their safety. The Archives Law also encourages companies to adopt advanced technology to modernize the management of archives.
In that sense, the Standard of Electronic Records Filing and Management (GB/T 18894-2002) (电子文件归档与管理规范) (the GBT) a national standard providing guidance on the filing and management of electronic records, requires that companies set up a strict management system and take appropriate measures to ensure the authenticity, integrity and effectiveness of archival electronic records.
Measures on Accounting Records Management (会计档案管理办法) issued jointly by the Ministry of Finance and Ministry of National Archive, effective January 1, 2016, provide that accounting vouchers, books and records, and financial statements may be filed and archived electronically and are legally as valid as original paper documents. However, there is no similar rule with respect to HR documents under the PRC laws currently in force.
In most cases when an electronic scanned copy is provided, unless the counter party admits to the authenticity of this scanned copy, courts will require that the party submitting the scanned copy provide other related evidence to prove the authenticity and reliability of the scanned copy, otherwise the evidence will not be admitted. For example, a scanned copy, which is certified and notarized by a notary public as an authentic and true copy, has the same legal effect as the original document.
Are there any legal requirements for electronic archiving systems (EAS)?
Regarding electronic archiving systems requirements, PRC law does not have any specific legal requirements. However, to strengthen the probative value of an electronic scanned copy, the following factors should be taken into account:
- The reliability of the manner in which the electronic scanned copy was generated, stored and transmitted. Electronic records should be stored in an un-erasable electronic medium and have a backup copy kept separately in a different location. In addition, specific employees should be designated for the collection, filing, archiving, use, storage and destruction of records.
- The reliability of the manner in which the integrity of the information is maintained. The technical environment and database of electronic records should be maintained on a periodic basis to ensure long-term and effective use of such records.
HR Best Practices: The full electronic archiving era is approaching, but for now it is not possible to guarantee that all paper documents can be destroyed. For Chinese employers, the general rule is that an electronic scanned copy of the original document is legally valid as long as it is authentic, integral and unaltered.
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.