Employee records management - changes from January 1st, 2019
In 2019, the legal changes concerning the opening and keeping of employee personal files and employee records (including the form of keeping records in hard copy or electronic form) and shortening their retention periods, came into force.
When it comes to provisions of the Act of 10.01.2018 (Dz.U.357.2018) binding from 01.01.2019 concerning the shortening of the retention period of employee records and their digitalisation, please refer to our Newsletter of March 2018. In this regard, let us remind that pursuant to a general rule arising from various regulations, such as the Pensions Act, a contribution payer (employer) is obliged to retain payrolls, payslips and other evidence necessary to assess the basis for retirement or disability pension, for 50 years from termination of employment of the insured person with the given contribution payer. The purpose of the amendment was to shorten the retention period of records of individuals employed from 01.01.2019 and provide, under certain conditions, the possibility to shorten the retention period with respect to employment relationships established from 31.12.1998 to 01.01.2019.
Retention period of employee records
From 01.01.2019, an employer retains employee records for 10 years for:
- persons insured with the Social Insurance Institution (ZUS) after 31.12.2018 by the given contribution payer;
- under certain conditions - persons insured with ZUS between 01.01.1999 and 31.12.2018, in such a case a 10-year period will count from the end of a calendar year in which the contribution payer registered an employee with ZUS.
For any other insured persons, the retention period of employee records is 50 years. With respect to employment relationships established before 1999, it’s not possible to shorten the retention period of employee records.
We would like to draw your attention to the Regulation of the Minister of Family, Labour and Social Policy of 10.01.2018 (Dz.U.2369.2018) concerning employee records, which specifies:
- the scope, manner and terms of keeping, storing and changing the form of employee records (including requirements related to records in electronic format, their processing and transferring between ICT systems);
- the manner and procedure for notifying employees about the possibility to reclaim their records;
- manner of delivering a copy of the entire or part of the employee records to an employee, former employee or persons authorized to collect it under provisions of the Labour Code.
Pursuant to the above regulation, personal files are kept for each employee separately.
New division of employee records
A novelty is that from 01.01.2019, personal files comprise 4 sections: A, B, C and D (formerly 3 sections: A, B and C).
Section A contains declarations or documents related to personal data collected in connection with work application, as well as referrals to medical examinations and medical certificates relating to entry and periodic medical examinations and screening tests.
Section B contains declarations or documents related to the establishment of employment relationship and the course of employment. Please, note that personal file should contain a confirmation that an employee was notified of the purpose, extend and manner of camera monitoring and referrals to medical examinations issued during employment as well as statements on notifying an employee about the company secrets. Notes of disciplinary sanctions will no longer be kept in Section B.
Section C contains declarations and documents related to termination or expiry of employment.
Section D should contain certified copies of notices of imposing a penalty and other documents related to the employee’s disciplinary liability or liability under separate provisions.
Each section of personal file should contain a list of declarations and documents kept in it. Declarations and document kept in relevant section should be numbered and ordered chronologically. A new thing is that topically-related declarations and documents in section A, B or C, may be kept in separated sections numbered respectively A1, B1, C1 and so on. Chronological order, numbering and making a list of declarations and documents applies to each such section.
It is worth noting that in the employee personal file kept in hard copy, the employer must store officially certified copies or copies of documents submitted by prospective employee during recruitment process and subsequently by an employee, certified as true copy by employer or a person authorized by employer.
Regardless of an obligation to keep personal files, employer should keep, separately for each employee, employment-related records, including:
- documents relating to working time recording;
- documents relating to applying for and using annual leave;
- payslips regarding payments of salary and other work-related benefits as well as employee’s application for cash payment of salary directly to an employee;
- record and allocation card related to workwear and footwear and personal safety equipment, as well as documents related to payment of cash equivalent for using own workwear and footwear and related washing and maintenance.
Further, it is worth noting that pursuant to the amended regulation, an employer should provide appropriate conditions for protection of employee records kept and stored in hard copy, against destruction, damage, loss or access by unauthorized persons, in particular by providing in the premises where they are stored, appropriate humidity, temperature and safeguards against unauthorised access.
The regulation also contains provisions regarding special requirements with respect to keeping and storing electronic records and transferring employee records between ICT systems and with respect to notifying an employee of the possibility and the manner of reclaiming the employee records.
New regulations related to the issuance of employee documentation
The amended Labour Code provides that from 01.01.2019 in the event of termination or expiry of employment, the employer should provide the employee with the following information in hard copy or electronic format along with the employment certificate:
- retention period of employee records referred to in Article 94(9B) or Article 945(2) Labour Code
- possibility of reclaiming employee records by the employee until the end of the calendar month following the lapse of the statutory retention period of employee records referred to in Article 94(9B) or Article 945(2) Labour Code
- destruction of employee records if they are not reclaimed within the specified time limit.
Pursuant to the regulation, the employer serves on the employee or former employee, a notice of possibility to reclaim the employees records against a signed and dated receipt.
The employer serves the notice in person, or through postal services operator, or person authorized by employer or by electronic means of communication (providing a confirmation of receipt can be obtained).
Employee records may be given to an employee or a former employee as well as persons specified in Article 949(3) Labour Code or persons authorized by the above persons.
The employee records kept in hard copy are given directly to an employee against a signed and dated receipt.
The employee records kept electronically can be given:
- on IT data storage device collected by an employee against a signed and dated receipt, or
- by electronic means of communication provided a person to be given the employee records has been unequivocally identified before handing them over and delivery will be confirmed by a proof of receipt.
To the records and personal files of employees employed on the day of entry into force of the regulation, and collected before 01.01.2019, the provisions of the regulation of 10.12.2018 apply, except for Section 2-6. With that respect the provisions binding before the entry into force of this regulation apply.
To the records of employees employed before the date of entry into force of the regulation and collected after 01.01.2019, the provisions of the regulation of 10.12.2018 apply.
To working time records of employees employed on the day of entry into force of the regulation, the provisions of the regulation binding before that day apply.
It is worth noting that employers may, but are not obliged to, convert the employment-related documentation and employee personal files to the requirements of new regulation (earlier drafts provided for a gradual conversion of documentation). It seems, however, that high costs associated with conversion of documentation have caused a departure from initial proposals.
This bulletin has been prepared for Contract Administration clients with general information about legal issues and is not intended to be relied upon as professional advice. Please refer to your adviser for formal advice before taking any decision or action with respect to information contained herein.
Director of Personnel Department