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Human Resources

New rules on employee documentation: A huge stride or just a small step forward?

By Adam Nierzwicki, counsel, and Paweł Lasota, senior associate, both on the employment team at Wierzbowski Eversheds Sutherland
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Digitisation, a shorter retention period, more clarity – but also additional formalities and new obligations for employers wanting to fully benefit from the new regulations on employee documentation.

These are the main issues arising from this year’s long-awaited amendment of the rules on employee personnel files.

The beginning of 2019 welcomed employers with many new features of employment law. One of the biggest changes concerned the rules for maintaining employee documentation. The new provisions introduced some revolutionary amendments, such as shortening of the retention period and the long-awaited electronic form of maintaining files. Not everything is as simple as it seems, when we consider the additional requirements and pitfalls awaiting eager employers.

Electronic files are the future

The main change under the amendment is the possibility for employers to cease keeping employee documentation in physical, paper form and to convert it into electronic data. The choice lies solely within the employer’s discretion: nobody is forced to move with the times and digitise their files. The advantages of this solution are numerous, including less paperwork, lower maintenance costs, better accessibility and security of files, and a positive, environment-friendly approach.

Digitisation of employee files requires scanning the originals into electronic form and affixing them with a qualified electronic signature or qualified employer’s stamp. 'Qualified' is the key word here, as parliament decided to introduce stricter formalities, obliging employers to obtain a qualified (more secure) electronic signature and a device required for its use. Many employers in Poland already use such e-signatures, but for other, smaller entities, this will result in additional expenses.

Are e-files not enough?

If e-files are not impressive enough, think about cutting any given cost by four-fifths. That is the kind of saving made possible with regard to the retention period for employees’ personnel files. It is not easy to know how long personnel files of employees will come in handy, as former employees, tax authorities or social insurance authorities may require production of certain historic data or documents which have been kept in storage for a long time. However, the retention period of 50 years required by law seemed a bit excessive, especially considering that it was calculated from the end of employment. It is easy to imagine that in some instances, all that remains of the business of some employers is the personnel files of their former employees. Thankfully, this has changed now, and hopefully employers can save on costs of retention of files of former personnel.

From 1 January 2019, the overly long 50-year period of retention was cut to just 10 years—although, in all fairness, this only applies for all new hires who started from 1 January 2019 on. The retention period for other staff now depends on when they started work. Savings are still possible with regard to files belonging to employees who started between 1 January 1999 and 31 December 2018. The 10-year retention period will be applicable for this group of employees if the employer files an information report with the social insurance authorities with respect to each individual employee. Otherwise, the 50-year retention period remains applicable. Lastly, there is the group of employees who started before 1 January 1999, and for them no changes are possible. Their files need to be kept for 50 years.

The 10-year period is calculated from the end of the calendar year in which the given employee departed the company. This makes it easy, because the same retention end-date applies for all individuals who left the company in the same year. Once the retention period expires, former employees have just one month to collect their personnel files. Otherwise, the documentation must be destroyed. For employers there is an additional obligation – to inform every departing employee of the applicable retention period and the possibility of collecting the files after the retention period.

What if a former employee—a prodigal son—decides to return and is rehired before the 10-year retention period runs its course? In such a case, the retention period is extended and recalculated from the end of the subsequent employment. A similar rule applies if there is litigation or other proceedings pending in which the personnel files of an employee are needed. Then the retention period is extended beyond 10 years, for the duration of the proceedings.

Change in the right direction?

The changes are not as revolutionary as they may seem, but are definitely a step towards simplifying life for employers, requiring greater or lesser effort to introduce. Employee documentation maintained in an ideal, orderly state, kept in a secure, easily accessible electronic form, is definitely the target for many, if not all, employers. 

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