Digitalisation of personnel files – new law in Poland

by Katarzyna Małaniuk

5 April 2018

An act amending certain acts in connection with the shortening of the minimum personnel files' storage period and their digitalisation was passed on 10 January 2018. The new act comes into force on 1 January 2019 and introduces major changes:

1. reduces the storage time with respect to the employment documentation and employee personnel files from 50 to 10 years;
2. allows employers to keep and store the employment documentation and employee personnel files in electronic form;
3. makes a direct deposit to the employee's account the preferred method of salary payment. 

The above changes are introduced in pursuit of the government's Responsible Growth Plan ("100 changes for businesses" legislative package).

Documentation storage period

The new act introduces a shorter, 10-year minimum period of storage of employment documentation and civil law contracts. This is a massive change of the current legal requirements as the employers now have to archive the employment documentation for 50 years after employment termination.

The 10-year period counts from the end of the calendar year in which the employment is terminated or expires. Still, special regulations may require a longer storage period (e.g. with respect to miners).

The new regulations answer the employers' demands for a legislative overhaul as such a long storage period was not only a millstone round the necks of the existing employers, but also a stumbling block for micro and small enterprises or those who wanted to expand their business. Employers often do not have ample place to archive personnel files and storage space rental may be costly and may, again, restrain micro and small enterprises.

Individual ZUS account

The justification to the discussed draft act explains that the documentation storage period may be shortened because all data necessary to determine the entitlement and amount of benefits will be delivered to the Social Insurance Institution (ZUS) on behalf of the employees and workers hired under civil law contracts.

In practice, employers will need to submit monthly individual reports on due contributions and benefits paid out (ZUS RCA form). The data will be saved in a dedicated account of each insured person. This regulation improves, above all, the employees' security because all information about contributions and benefits will be saved in their accounts. At present, the Social Insurance Institution does not have access to such information and it has to be delivered by the insured.

Thanks to the individual accounts, in case of any doubts employees will not have to contact previous employers for e.g. certificates of employment and earnings. Furthermore, employees will have live access to the data in their accounts through the online Electronic Services Platform (PUE ZUS) and an option to review the data, and if documents are lost, to request information about the account to be delivered online or in hard copy. This will make the fulfilment of labour law obligations easier.

We would like to emphasise that the shorter documentation storage period will apply to employees and contractors hired after 1 January 2019, i.e. after the act's effective date.

Hired before 1 January 2019

The lawmakers have envisaged different rules for those hired before 1 January 2019 and divided them into two groups:

1. those hired after 31 December 1998 and before 1 January 2019 

With respect to the first group, employers will still need to store all documentation for 50 years after employment termination or expiry. However, they can cut this period to 10 years counted from the end of the calendar year in which they file a relevant information report (Article 7(3) of the discussed act).
Practically speaking, an employer who wishes to use this option must first submit a (voluntary) declaration of intent to deliver information reports for all employees and then actually deliver those reports. Such an employer may cancel the declaration before he files the first information report and if he fails to cancel, his declaration to deliver the reports will be binding on him in the future.

2. those hired before 1 January 1999

With respect to the second group, employers will still be obliged to keep all employment documentation and personnel files for 50 years.

Employees to collect their documentation

One novelty is to let employees collect the employment documentation after the minimum storage period. Employers have to inform employees about this right. Pursuant to amended Article 946 of the Labour Code, in addition to the work record certificate (świadectwo pracy) employers must inform the employees about the personnel file storage period, the right to collect the personnel file until the end of the calendar month after the expiry of the storage period, and the necessity to destroy the file if the employee fails to collect it. The employee personnel file must then be destroyed beyond recovery within 12 months of the deadline for collection.

Digitalisation of files – compulsory or voluntary

Another major change is the option to voluntarily keep the personnel files in electronic form. Amended Article 94(9a) of the Labour Code says: to keep and store employment documentation and personnel files (personnel documentation) in hard copy or soft copy.

The article clearly stipulates the alternatives, namely that the employer will be able to keep the documentation file in hard copy or soft copy, which may have a good influence on the current practices. Some employers keep double files – one in soft copy for their convenience and the other in hard copy because the law so requires. 
Please note that the personnel documentation kept and stored in soft copy will be treated equal to the hard copy version. Personnel documentation in hard copy should be transformed into soft copy through digital reproduction, especially scanning, and by appending a qualified electronic signature or a qualified electronic seal of the employer or a qualified electronic signature of the employer's designee.

The rules regarding the scope, methods, conditions of keeping, storing and changing the form of the personnel documentation, as well as the notification of the opportunity to collect the documentation are yet to be described in more detail by way of an official regulation.

Digitalisation of personnel documentation is a natural process in digital society. The objective is to improve the documentation storage conditions, cut the time necessary to browse and work on the files and reduce the storage costs.

Cashless payment of wages and salaries

Another long-awaited and much-pressed-for claim among the employers, which the new act satisfies, is to recognise cashless payment of wages and salaries as the basic form of pay.

Within 21 days of the act's effective date, i.e. by 22 January 2019, employers will have to notify (in their usual way of communication) employees who receive wages in cash of the requirement to provide the bank account number to which the wage will be directly deposited. However, if the employee prefers being paid in cash, he or she may request the payment in such a form and the payment will have to continue that way. Please note that an employee may submit the said request on paper or by e-mail (no need for a qualified electronic signature) within 7 days of receiving the employer's notification.

In order to let employers fulfil this obligation the lawmakers have amended also Article 221 of the Labour Code as regards the data disclosed to employers who are now entitled to request their employees' bank account numbers.

The cashless payment of wages and salaries is more convenient for employers because keeping a cash box entails additional obligations. From the legislator's point of view, the amendment is meant to curtail the informal economy which spreads easier in a cash society.  

Employers should act now to get ready for the new regulations. In particular, they should decide whether they want to digitalise personnel files and think about what system solutions to implement in view of their work on the preparation for the General Data Protection Regulation (GDRP).