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.
The People's Republic of China (PRC) Law, however, does not generally address the issue of the legal value of native electronic documents. It remains uncertain how the courts will recognize the legal value of native electronic documents such as emails, word processing documents, spreadsheets, etc.
Native electronic documents may be admitted by a court as long as they can be proven to be authentic, integral, reliable and relevant. However, to enhance the admissibility of electronic documents as evidence, a company should take appropriate measures to ensure that proper procedures for generating, processing, storing and transferring the electronic documents have been followed.
From an HR perspective, there is no restriction prohibiting HR departments from distributing and storing documents electronically. However, according to the Cybersecurity Law of the People's Republic of China (Cybersecurity Law), HR departments are required to keep personal data strictly confidential and may not disclose, disseminate or damage the personal information collected.
With respect to employee payroll, nowadays electronic paystubs are widely used by employers in practice and the data may be stored electronically. It has also become uncommon to have employees sign paperwork, confirming receipt of wages.
According to PRC Contract Law, telex, fax, electronic data interchange and e-mail fall under the scope of electronic data (数据电文) and are recognized as a written form (书面形式). The Electronic Signature Law further extends the scope of electronic data to “any electronic data that can show the contents in material form, and which may be accessed and used at any time” (the Electronic Data). It is possible to assume that native electronic documents refer to Electronic Data in this context. Native electronic documents have the same probative value as the paper originals as long as they are complete, authentic, integral and reliable.
HR Best Practices: Native electronic documents may be admitted by a court as long as they can be proven to be authentic, integral, reliable and relevant. However, considering the nature of the electronic documents in scope, a company should take appropriate measures to ensure that proper procedures for generating, processing, storing and transferring the electronic documents have been followed.
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.
