Requirements to the Storage of E-Documents in Employee Files

The increasing spread of teleworking, together with the consequences of the COVID-19 pandemic, have changed the way employees and employers communicate. Until recently, the exchange of documents between them could be expected to create problems at the time when the employment relationship was terminated, whereas now difficulties occur throughout its existence. The options for sending and storage of documents in an electronic format in employee files provide a solution to a great number of these problems. However, they imply the use of a specialised dedicated information system and adequate internal rules which are to be observed very strictly by the employer.

The requirements for storage of e-documents in employee files are set out in Article 128b of the Labour Code, in accordance with which the Council of Ministers has adopted the Regulation on the Type and Requirements for the Creation and Storage of E-Documents in Employee Files that was published in The State Gazette, No. 40 of 15 May 2018. This legal framework gives a partial solution to the problems induced by new technologies, but it creates new ones as a result of which some people claim that the implementation of the Regulation becomes unfeasible. Such opinions are quite extreme; however, the accurate implementation of the Regulation warrants thorough preparations by the employer.
These preparations should be focused on two major lines. One of them is the choice of an existing information system for the storage of e-documents in employee files or the development of a new system. The other line of action is the introduction of internal rules to streamline the whole process.

The availability of an information system for the storage of e-documents in employee files is an indispensable condition for the employer to introduce rules on the exchange of e-documents. The lawmaker has made it clear that the regular maintenance of employee files is an obligation of employers and a prerequisite for the exercise of their powers. Therefore, the information system for the storage of e-documents should provide evidence of the timeline along which documents are received and of their contents.

For this reason, the Regulation sets out a number of specific requirements to ensure the authenticity of employee files and the security of data. Access should be allowed only in a two-step identification process and all records in the system should be certified with a qualified time stamp. Furthermore, the system should enable the sending of documents via registered electronic delivery services and the identification of persons and email addresses used in the system. The information system for storage of e-documents should not allow accidental deletion of documents and unauthorised access. Besides, the data on the servicing of a document and the time of its registration should be protected against modification. Another requirement for the employer is to sign documents with a qualified electronic signature to certify the time of their drawing up, their author, and their contents.

All these requirements result in a number of consequences for the information system. Firstly, it should be compatible with qualified time stamps that are to be made available by a provider registered accordingly with the Communications Regulation Commission. Furthermore, the system should be connected to an electronic registered delivery service. The Regulation leaves some lack of clarity in this respect because the electronic registered delivery service cannot be the information system for storage of e-documents in employee files itself. The electronic registered delivery service only ensures the identification of senders, recipients, the time of sending and receipt, and the content of communications. However, this service should be separate from the information system because employee files are kept by the employer and the documents stored relate only to the employment relationship and therefore documents are not transferred to the information system automatically. This arrangement will protect at least against the storage of unsolicited commercial communications in employee files.

In accordance with the Regulation, employers are required to provide continuous free access of employees to their electronic files. They are also required to make available the e-documents stored there, including hardcopies of these documents. The fulfilment of these requirements, however, should comply with the requirements for identification of the persons accessing the systems and for guaranteeing security.
The second set of requirements in the Regulation refer to the employer’s activities which have to be laid down in the internal rulebook. Some of them are set out explicitly, while others are inferred by way of interpretation.

One of the explicit provisions of the Regulation is, for instance, the requirement for the employer to specify in the internal rulebook what documents will be stored in employee files in an electronic format and the types of these documents. Furthermore, it would be appropriate for the rulebook to contain forms of these documents because the definition of the term “e-document” under the Bulgarian laws is quite broad and includes audio-visual records as well. But the internal rulebook cannot rule out the acceptance of hardcopies of documents because this is explicitly prohibited by the Regulation. In this connection, there are rules on the scanning of hardcopies and the signing of electronic versions with a qualified electronic signature, while making an entry of the digitalisation on the hardcopy. One could draw a conclusion from this requirement that hardcopies continue to be stored in employee files to provide evidence of the compliance with the Regulation.

The employer has to provide rules on how employees are notified of the information system introduced to store e-documents in employee files. The internal rulebook should specify the way in which employees sign documents by an ordinary, advanced or qualified electronic signature. The costs related to the ordinary electronic signature are borne by the employer, while advanced and qualified electronic signatures are subject to registration with the Communications Regulation Commission. The parties are free to make an agreement on the ordinary electronic signature and the details to be used by the employee for this purpose. However, this agreement should be explicit, i.e. it is not sufficient to set it out in the rulebook but there should be separate agreement with the employee concerning the electronic signature.

The employer should set out many other rules which are not worded explicitly in the Regulation. Firstly, the internal handbook should contain rules on how the electronic mailbox is checked and how documents are transferred from the mailbox to the information system. As stated above, the transfer cannot be automatic because the employer has to decide whether to store a document in the system and which employee file in will be stored in. Another issue to be settled by the employer is how employee files are structured, how documents are arranged, whether folders will be used, etc. Other rules should clarify the access of other persons (managers, supervisors, and others) to these files. The rules should clarify the procedure of parallel storage of hardcopies and electronic documents in the employee files and the guarantees that both versions contain all necessary documents.

After these two sets of requirements are fulfilled, the employer has to make one more step to notify the employee of these rules. The service of e-documents to the employee may be carried out only with his or her explicit consent. Therefore it would be appropriate for the consent to be obtained at the time of the notification, e.g. upon the signing of the employment contract or by signing an annex to the contract. Since electronic statements cannot be sent to the employee before that point of time, the consent form must be in a hardcopy format. If the employee will use an ordinary electronic signature, it would be appropriate to specify it in the same document.

The introduction of an information system for the storage of e-documents in employee files enables the employer to facilitate and simplify the exchange of hardcopy documents. For this purpose, however, the employer should follow the steps described above to ensure that electronic employee files comply with the Regulation and correspond to the specific activities of the employer.