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?
Under Polish law going into effect January 1, 2019, paper electronic employee records are specifically permitted to be scanned and stored electronically (Act on Amendment of Some Acts in Connection with Shortening the Period of Storage of Employee Files and Their Electronicisation, 2018).
Scanned copies of paper originals must include either include an electronic seal from the employer or a qualified electronic signature from an employer-authorized individual, verifying that the content matches that of the paper original. If records are migrated to an electronic format, employees must be informed of the change and given 30 days to collect the original record prior to the employer being allowed to destroy the original record. If the employee is dead, certain family members have the right to pick up the document.
Note that according to the Polish Accounting Act, accounting and inventory documents should be stored in their original form, i.e. if these documents are natively electronic they should be stored in the same form.
Are there any legal requirements for electronic archiving systems (EAS)?
Starting January 1, 2019, when the Act goes into effect, employers will be able to choose whether to keep a paper or electronic archive of employee documents. The basic requirements stipulate that both forms will need to have the characteristics of confidentiality, integrity, completeness and availability in conditions that do not damage or destroy the documents (Labor Code, Article 94, 9b). Until the entry into force of the Act, electronic archives of paper originals can only serve as an auxiliary to the paper version.
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. Indeed, the acceptance of digital copies remains subject to the discretion of the judge.
As a best practice in Poland, store paper originals in addition to the electronic copy until at least the new Act goes into effect in January 2019. The new Polish Act will likely have implementing regulations in the coming months. The specifics of changing from paper to electronic files have not yet been detailed.
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.