Poland: New rules regarding employees’ privacy and documentation
Blog Global Compliance News

What is the new development

Since 1 January 2019, there have been major changes in the provisions regarding keeping employee documentation. They are as follows:

a)	the employer now has the option to choose whether to keep employee documentation in paper form or in electronic form. Previously, only paper form was admissible. The form can be changed by the employer, in accordance with the circumstances specified in the Labour Code.
b)	significant shortening of the period of keeping employee documentation from 50 years to 10 years counted from the end of the calendar year in which the employment relationship terminated or expired, unless separate provisions provide otherwise. The longer period applies if the employee documentation is used as evidence in court proceedings;
c)	after termination or expiration of the employment relationship, the employer must inform the employee, alongside the certificate of employment about: the retention period of the employee documentation; the possibility of collecting the employee documentation by the end of the calendar month following the expiration of the retention period of the employee documentation; the destruction of the employee documentation in the event of it not being collected within the abovementioned period.
d)	destruction of the employee documentation – this should be done in a manner that makes it impossible to reproduce its contents within 12 months following the end of the period for the former employee to collect the employee documentation. Until the time of destruction, the employer may issue the employee documentation to the former employee within the said 12 months.

What does the new development mean for companies?

The availability of the option to keep employee documentation in electronic form could potentially lower the costs of keeping the documentation (no additional space needed, less or no additional costs of external archive).

Shortening the period of keeping employee documentation from 50 years to 10 years also makes it possible to reduce the employer’s costs related mainly to space and archiving.

New obligations for employers are as follows:

a)	Information duties towards current and former employees.
b)	Technical requirements for the IT system used to keep employee documentation, which include: ensuring the security of the IT system from damage, destruction or unauthorized access, access only for authorized persons; identification of persons having access to the documentation and registering any changes made by those persons; functionality of the documentation printout.
c)	Protection of employee documentation kept in electronic form by the following means: systematic analysis of threats; development and application of procedures for securing documentation and systems for their processing, including access procedures, backup and storage; application of security measures adequate to the threats; ongoing control over the functioning of all organizational and technical-IT security methods, as well as periodically assessing the effectiveness of these methods; preparation and implementation of plans for storing documentation for a long time, including its transfer to new IT data carriers and to new data formats, if it is required to ensure continuity of access to the documentation.

Copy of the documentation

Employers are obligated to give employees or former employees a copy of their documentation at the employees’ or former employees’ written or electronic request. Such request may also be submitted by the entitled persons listed in the Labour Code (e.g., children or spouse in case of an employee’s or former employee’s death).

Fines

Two cases were added to the catalogue of offences against employee rights in the Labour Code:

If an employer or any person acting on his/her behalf:

1. does not keep the employee documentation within the period specified in the Labour Code or for a longer period if it is provided otherwise in separate provisions;
2. keeps the employee documentation in conditions that can cause damage or destruction;

he/she shall be liable to a fine ranging from PLN 1,000 to PLN 30,000.

The amounts of the fines remain unchanged. Notwithstanding the above, violations of employees’ personal data protection may result in a fine imposed on the basis of the GDPR.

What should companies do?

a)	Decide on the form (paper or electronic) to be used to keep employee documentation.
b)	Companies that intend to switch from paper to electronic form should: digitalize the documentation, in particular, companies can make a scan and affix it with a qualified electronic signature or a qualified electronic seal of the employer or a qualified electronic signature of the person authorized by the employer confirming the compliance of the digital representation with the paper document; inform the employees, in the manner adopted in the company, about: the change in the form of keeping employee documentation, the possibility to receive the employee documentation in its previous form within 30 days from the receipt of information about the change of the form, inform (in paper or electronic form) the former employee about the possibility to receive the employee documentation in its previous form within 30 days from the receipt of information; check if the company’s IT system meets the applicable requirements.
c)	If companies want to switch from electronic to paper form, print the documents and sign them as the employer or a person authorized by the employer to confirm the compliance of the printout with its digital representation. The duties to inform employees apply as described above in point (b).
d)	The 10-year period of keeping employee documentation applies generally to employment relationships established since 1 January 2019.
e)	For employment relationships established before 1 January 2019, the period of keeping the employee’s or former employee’s documentation shall be the same as in the previous provisions (generally, 50 years) subject to an exception. For employment relationships established after 31 December 1998 and before 1 January 2019, the period of keeping employee documentation can be shortened. In order to shorten it, the employer has to submit an information report to the Social Insurance Institution, the requirements of which are given in the provisions of law. The period for keeping employee documentation will then be 10 years, starting from the end of the calendar year in which the information report was submitted.
f)	If the company receives a motion to issue a copy of some employee documentation, apply the special provisions given in the Labour Code and in the executive act. Employee documentation contains personal data, but before the provisions of the GDPR, the special provisions should be applied.
g)	Within 12 months from 1 January 2019 employers are obligated to adjust the manner of keeping former employees’ documentation to the new rules, i.e., the employer provides appropriate conditions for safeguarding employee documentation kept and stored in paper form against damage, loss and access of unauthorized persons, in particular by ensuring adequate humidity and temperature in the room where the employee documentation is stored, and securing this room against unauthorized access. This applies to the documentation of employees whose employment relationships ended before 1 January 2019.