The electronic employment files and the (im)possibility for employers to destroy the old paper archives
The Ordinance for the form and requirements for creating and keeping electronic documents in the employment file of the employee adopted in May 2018 lays down in detail the opportunity for employers, envisaged in the Code of Labor, to create and keep part of the documents in the employment files in electronic form. The Ordinance provides the employers with the opportunity to decide unilaterally on whether to keep the labor files in electronic form. However, the employees shall be duly notified about that and the employer shall be able to evidence compliance with this obligation.
However, in order for an employee to be able to receive electronic documents, his/her explicit consent is required. Consent may be given or withdrawn at any time before, at the time of or after the establishment of the employment relationship. The electronic communication between the parties, however, cannot be carried out via standard email addresses, but via electronically registered email addresses. These email addresses shall be in full compliance with the regulatory requirements and the expenses shall be paid by the employer. Employers shall always sign electronic documents with a qualified electronic signature and in case such a signature is required for the employee as well, the related expenses shall also be covered by the employer. Alternatively, the employee may use other means for identification provided that they are in compliance with the legal requirements for using an e-signature, as well as with the arrangements between the parties. Employers are also obliged to comply with the detailed requirements of the new regulation regarding the IT systems used for keeping electronic documents. In addition, the employers shall cover the related expenses and the training of their employees to operate the systems, as well as to obtain and maintain the employees’ qualified electronic signatures.
It is at the discretion of the employers to keep documents created at first on paper in the electronic employment file. This may be done by scanning the documents and certifying the conformity of the copy with the original through a qualified electronic signature of the person who has performed the operation of making the e-copy. However, the employee’s right to provide information on paper may not be limited even if he/she has consented to exchanging electronic communication. Employers shall further make sure the electronic systems for filing leave requests used by them are compliant with the legal requirements and whether such systems may be further used.
It is debatable whether the new legislation would allow employers to destroy the large volume of documentation kept so far on paper, or whether they shall maintain both electronic and paper registers.
Changes related to the preparation of working time schedules
Since 1 July 2018, significant changes have been made to the regulation of working time, breaks and holidays related to the accumulated calculation of working time model. The changes regulate the recalculation of the working time duration norm in the working schedules prepared by the employer. When an employee has been on leave for temporary work incapacity, pregnancy, childbirth or adoption leave, his/her working time duration norm will be reduced by the hours when the employee was on the respective leave in accordance with the working schedule.
The changes aim to introduce an unified approach in the labor and social security legislation, taking into account temporary work incapacity, pregnancy, childbirth and adoption, and to ensure payment according to the actual time worked off.
After the changes, the working time duration norm will reflect only the time actually worked. The norm will be determined in hours based on the number of days worked per calendar week, included in the reporting period, multiplied by the daily duration of the working time under the employment contract. This change is important, as it will overcome some practical issues in preparing the working time schedules.
Naiden Kostadinov, Partner, Global Compliance and Reporting Sevices, Naiden.Kostadinov@bg.ey.com
Svetlin Adrianov, Associate Partner, EY Law Partnership, Svetlin.Adrianov@bg.ey.com
Milena Blagoeva, Senior Manager, Global Compliance and Reporting Services, Milena.Blagoeva@bg.ey.com
Rebeka Kleytman, Manager, EY Law Partnership, Rebeka.Kleytman@bg.ey.com