Changes in employee record-keeping requirements as of 2019

Magdalena PRAJSNAR
HR&Payroll Senior at RSM Poland

On 1 January 2019, many changes in the labour law regulations entered into force, primarily involving the rules and principles of keeping, storage and the format of employee records. The scope of employee records itself has changed, as well. Are these changes for the better?

Scope of employee records

In accordance with the Regulation by the Minister of Family, Labour and Social Policy, as of 1 January 2019 employers shall be under obligation to keep employee records separately for each employee. Such employee records shall include:

• Personnel file
• Work time records
• Records of requested and granted annual leave
• Record of remuneration paid for work and other work-related benefits
• Record of allocated work clothing and footwear and personal protective equipment

As regards the first major part of employee records, i.e. the personnel file, a considerable change pertains to naming records kept in folders. The fact that parts A, B and C of the personnel file can be divided into smaller parts is an obvious convenience. For example, part B of the file can be thematically divided into part B1, where you would keep employee contracts and annexes, and part B2, with medical certificates and confirmations of periodic health and safety training completion.

Such a division may make it faster to find specific documents and copy them, if needed.

The introduction of a new part D for storing records of any disciplinary actions towards the employee or liability under separate regulations has finally solved the problem of removing disciplinary actions from the employee records. In this case, the employer’s obligation is that records kept in part D must be grouped and assigned numbers D1, D2 and so on, respectively.

With such a solution in place, you do not have to prepare a record description again and change the numbers of records included in folders once the disciplinary action has been effected.

Another change the human resources administration will face as of 1 January 2019 is that the legislator has provided explicit guidelines on how to deal with the employee records in the case of re-employment of the employee by the same employer. According to new Article 94⁵ of the Labour Code, the human resources department shall continue employee record-keeping provided that the re-employment takes place in a period in which the company remains obliged to keep the records of a given employee. Thus, the employee will not have to re-submit the documents that are already in the possession of the employer. If they have submitted copies of certificates of employment and a copy of a school certificate, they shall not be obliged to submit them again, and the seniority for the annual leave shall be calculated according to the records the employer already has.      

The list of personal data the employer may demand from a person they already employ has been extended in the Labour Code to include a bank account number. By 22 January 2019, employees who have been paid remuneration in cash to date must be notified by the employer about the need to submit their bank account number. Should an employee wish to continue receiving their remuneration in cash, they shall, within 7 days upon receipt of the notice, submit a written request to the employer to have the remuneration paid out in cash. As of 1 January 2019, the company shall be obliged to keep such a request together with the payroll records.

As regards the work time, the employers are obliged to keep work time record forms, their contents being explicitly defined under the Regulation, as well as any requests and statements concerning the work time, such as, for example, consents given by parents to work overtime or to be seconded.

Storage of employee records

In line with the new regulations, every mentioned part of the employee records may be stored independently of each other in either of the two formats: paper, as it used to be to date, or the new, electronic format. This means that the employer has the right to decide that records of annual leave will be kept in electronic format, but the remaining parts of the records may remain on paper.    

Every change of the form of record-keeping requires specific actions to be taken:

• Change from the paper to electronic format requires each record to be separately scanned, named (this name will help find a specific record of a given employee), and then signed with a qualified electronic signature or an electronic stamp
• Change from the electronic to paper format requires each record to be printed out and manually signed by an authorised person

The decision about the format for record storage is not imposed and, fortunately, it is reversible. If an employer decides to opt for paper format after a year of electronic record-keeping, they may change the format of storing employee records any time. In such a case, they shall be obliged to notify all (former and current) employees about this change and the possibility of collecting the employee records in respect of which the employer has decided to change the record-keeping format within 30 days after receipt of the notice.

Retention of employee records

Another important amendment of the Labour Code that entered into force on 1 January 2019 changes the period of retention of employee records. The legislator has divided employees into three groups, making the retention period dependent primarily on the employment commencement date:

• Employees employed before 1 January 1999: their records shall be kept as before, i.e. still for a period of 50 years after the date of contract termination
• Employees employed between 1 January 1999 and 31 December 2018: their records shall be kept for a period of 10 years or still for a period of 50 years
• Employees employed after 1 January 2019: employee records shall be kept for a period of 10 years

For the second aforementioned group of employees, this period shall depend on the decision of the employer; if the employer decides to apply a shorter period of record retention, they shall be obliged to submit the OSW form (declaration of the intention to submit reports for this group of employees) to the Social Insurance Institution, and then RIA name reports which shall replace Rp-7 forms (certificate of employment and remuneration for the entire duration of employment of the employee or the contractor) submitted in paper format.

As a result of the above changes, if the employer decides to apply a shorter period of employee record retention, they shall be under obligation to provide each former employee with additional information along with a certificate of employment. This information shall include a notice about the period of retention of personnel files, the option of their collection after the mandatory record retention period expires, and the effective date of record destruction in the event in which the employee fails to collect them within the prescribed deadline.

Many of the changes described above are good in my opinion. Employers will be allowed to keep records in each part of the personnel file in a way that will make it easier to find them quickly, and it will not be necessary to modify the records once a reprimand or a warning form is removed from the employee’s personnel file.

Companies can store records in a way they find convenient at a given time: either in electronic or paper format. Changes of the employee record-keeping method will be much less burdensome for small or medium employers who have only several employees. It will be more difficult for large corporations that employ hundreds of people or more. The record digitisation in such companies may be time consuming and costly.

However, such large companies can benefit the most from these changes; they may reduce the costs of paper record storage, they will find the required record easily and quickly regardless of the duration of employment of the employee whose records are being analysed. The risk of record loss or destruction due to fire or flood is also going to be lower.

Changes concerning the retention period of work time records may, in turn, prove to be the fly in the ointment. Until 31 December 2018, the employer was obliged to keep the work time records for 3 years, i.e. the limitation period for claims. Now this period will be much longer.

Will the changes introduced to the Labour Law prove to be good? As it is usually the case, each employer will have to see for themselves.