In May 2018, the Bulgarian Ministry of Labour and Social Politics adopted an ordinance for employment-related electronic documents and the requirements for their creation and storage in an employee’s file (Наредба за вида и изискванията за създаването и съхраняването на електронни документи в трудовото досие на работника или служителя). The new rules regulate, for the first time, an employer’s option to keep employee files in digital form and the exchange of legally binding electronic documents between an employer and its employees. The ordinance provides legal framework for, among others:
a. the types of electronic documents that can be part of an employee’s file;
b. the requirements for the creation and delivery of electronic documents by an employee and employer; and
c. the requirements for the storage of electronic documents as part of an employee’s file. If a company chooses to apply the options envisaged in the ordinance, it should adopt specific procedures in its internal employee handbook (Правилник за вътрешния трудов ред).
For the purposes of the electronic exchange of statements and documents relating to an employment agreement, both parties should give explicit written consent (in the employment agreement or otherwise) for receiving electronic statements and information related to the employment relationship. Either party may withdraw their consent at any time. Electronic statements or notices should be delivered through a registered electronic delivery service (under the meaning of article 3, item 36 of the Regulation (EU) No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market) at the employer’s expense.
Electronic statements and notices made by employees are considered legally binding if signed via an electronic signature, the latter provided by the employer on its costs. Employers on the other hand should use qualified electronic signatures under the meaning of article 3, item 12 of the Regulation (EU) No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation). In practice, these requirements may significantly limit the application of the ordinance, as for most employers it may be difficult or even impossible to supply all of its employees with electronic signatures.
Employers should notify employees in advance if the employer decides to maintain an electronic record of employee files. The new ordinance lists the types of electronic documents that can be part of an employee’s file:
a. unilateral documents created by the employer (for example, job descriptions, orders by the employer, certificates and declarations);
b. unilateral documents created by the employee (such as applications, declarations and statements);
c. bilateral documents (such as employment agreements, addendums to employment agreements and agreements for qualification upgrading and training);
d. documents issued by third parties that certify facts related to the employment relationship (such as documents concerning employee health status and documents certifying employee education); and
e. other documents containing data and information related to employment relationships.
Scanned copies of documents already available on hardcopy may also be uploaded in an employee’s electronic file.
The new ordinance also allows employers to use information systems for the creation and storage of electronic documents in employee files. The information systems must meet certain requirements for access, traffic data control and the reference-making mechanism, so that the stored data can be used as valid evidence for employment-related facts.
As these rules are new, it is not clear if and to what extent electronic exchange will be recognised by the courts in cases of dismissals and termination of employment. In Bulgaria, the termination of employment agreements entails a very strict and formal procedure. Bulgarian courts tend to adopt a more conservative interpretation of the law, especially when comes to unilateral termination by the employer.
Nevertheless, the ordinance is a step toward to the digitalisation of employment relationships in Bulgaria. Although companies may incur initial costs for the implementation of the technical requirements introduced by the ordinance, it is expected to eventually result in overall cost savings due to the reduction of paperwork and optimised administration of employment relationships.