A new Ordinance on the type of and requirements for creation and storage of electronic documents in employee files (the “Ordinance”) was promulgated in the State Gazette, issue 40 of 15 May 2018. It enters into force as of 19 May 2018.
The new Ordinance provides for the setting-up and maintenance of an electronic file by creating, storing and exchanging electronic documents between employers and employees. Specific technical requirements regarding the electronic employment files are laid down and should be taken into account and implemented by employers who would like to take advantage of the new legal opportunities.
Please see a summary of the provisions below.
Electronic employment file
The Ordinance provides for the possibility of signing and storing, in an electronic form, employment contracts and other documents requiring the consent of both parties to the employment relationship, such as additional agreements, contracts for acquiring higher qualification or re-qualification, etc.
Employment files may also contain, in an electronic form, documents created by the employer (job descriptions, orders, notifications); documents created by the employee (applications, declarations, consents, requests); documents created by third parties (medical certificates, sick leaves, certified notifications and references by the National Revenue Agency under Article 62, Paragraph 5 of the Labor Code, letters for distraint).
Creation of electronic documents
The creation of electronic documents, including employment contracts, is done by means of an electronic signature. The Internal Labor Regulation should set out the type of electronic signature to be used by the employees to exchange documentation – simple, advanced or qualified. If the employer requires the use of a qualified signature by the employees, the employer should provide the signing mechanism at their own expense.
The employer is obliged to notify the employees about the creation and storage of electronic documents in the employment files. The way of notifying the employees and the type of documents should be provided for in the Internal Labor Regulation.
Documents created by the employer must be signed by means of a qualified electronic signature. Unilateral electronic documents created by the employer and documents that require the consent of both parties should indicate the author of the document, the employer and the grounds for authorizing the author when the author is different from the employer.
Exchange of electronic documents
The exchange of electronic statements between the parties to the employment relationship shall be explicitly agreed between them in writing, while the consent to exchange electronic correspondence may be given or withdrawn at any time.
Electronic statements are served through the “electronic registered delivery service”, which makes it possible to transmit data between third parties by electronic means and provides evidence relating to the handling of the transmitted data, including proof of sending and receiving the data, and protects transmitted data against the risk of loss, theft, damage or any unauthorized alterations. Upon registration of the documents sent by the employee, a confirmation of the time and date of receipt and a registration number should be generated and returned to the employee.
At present, the use of electronic registered delivery is not widespread in the correspondence between the employer and the employee, and the implementation and use of electronic registered delivery is yet to be established in practice.
Storing of electronic documents
Documents submitted in hard copy could be included in the electronic employment file of the employee by scanning, in a form and manner allowing their reading and storage. The completeness and the accuracy of the scanned electronic image compared with the original document is certified by a qualified electronic signature of the person who performed the scanning.
Employees should have uninterrupted and cost-free access to electronic documents in their employment files. Any employee may request to receive a certified copy of the documents in an electronic or a hard copy and the employer must comply with the request within 14 days. The issuance of a scanned document in hard copy should be certified by a handwritten signature of the authorized person.
Employer information system
The creation and storage of electronic documents should be performed through an information system maintained by the employer. In addition to the requirements for compliance with the provisions of the legislation and the employment documentation, specific technical requirements for the system are set out such as the possibility of two-factor identification, timing of occurrence of facts with an accuracy of one second through a qualified certificate of time, creation of historical reference for all operation, identification of the individuals and electronic addresses from which the operations were performed, receipt and sending of documents via an electronic registered delivery, etc.
The employer shall maintain the information system in such a manner as to prevent accidental or unlawful destruction of documents and data, unauthorized access, modification or dissemination of data.
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