The use of an employee’s labor, in addition to the benefits and income generated, also entails certain obligations on the part of the employer. One of them is – in addition to keeping records for the pension authorities (Social Security) and tax needs – keeping employee records separately for each employee. It consists of keeping and maintaining records on matters related to the employment relationship.
Its second component is the employee personnel file. These, in turn, consist of four parts, which include, among other things, personal data, results of medical examinations, documents relating to the establishment of the employment relationship, the course of employment, the termination or expiration of the relationship, and documents related to the employee’s incurring of disciplinary responsibility.
The obligation to maintain employee records serves to safeguard the interests of the employee as the economically weaker party to the employment relationship. It is also of an orderly nature ensuring the proper course of work provision. Failure to comply with this obligation constitutes an offense against the rights of the employee.
Keeping employee records
The Labor Code imposes an obligation on the employer to keep records on matters related to the employment relationship and personnel files. The employer can choose whether to keep the records in paper form, electronic form, or both at the same time. According to the Labor Code, both forms are equivalent.
It is worth pointing out that the employer can change the way employee records are kept (and stored). For example, a change from paper to electronic form requires a digital reproduction (in particular, a scan, e.g., with a qualified signature or the employer’s electronic seal), and a change from electronic to paper form is made by making a printout and bearing the employer’s signature. The employer is obliged to inform employees of such a change and of the possibility of collecting the previous form of documentation within 30 days of this notification (similarly, this applies to family members of a deceased employee or former employee listed in the Labor Code, e.g. spouse or children). After this deadline, the employer may destroy paper employee records.
It should also be remembered that if the same employer re-establishes an employment relationship with a former employee within 10 years from the end of the calendar year in which the previous employment relationship was terminated or expired, the employer is obliged to continue to keep the existing employee records for that employee. However, it should not combine the records of the same employee from two contracts if different retention periods would apply to them.
Failure to keep, store or leave employee records by the employer or a person acting on its behalf in conditions that risk damage or destruction is punishable by a fine from PLN 1,000 to PLN 30,000.
Storage of employee records
With the maintenance of employee records comes the need to store them, which is also the employer’s responsibility. The method of storage must guarantee confidentiality, integrity, completeness and accessibility. It must also not risk damaging or destroying it.
The employer shall keep employee records for the period of employment and also for further specified periods.
The length of the period for which an employer is required to keep employee records depends on when the employee in question was hired. If it took place after January 1, 2019, it is 10 years from the end of the calendar year in which the employment relationship was terminated or expired. The same period applies to the employer if the employee was hired between 1999 and 2018, provided that for those hired, the employer filed a statement (ZUS OSW) and an information report (ZUS RIA) with the Social Security Administration during this period. The period starts from the last day of the year in which the information report was filed. On the other hand, if the employee was hired before January 1, 1999, the employer must keep employee records for 50 years from the date of termination. An exception is made for employees performing mining work and work equivalent to mining work. In their case, the obligation to keep employee records continues to be 50 years regardless of the date of commencement of work.
Sometimes employee records may constitute evidence in proceedings (such as criminal, administrative, bankruptcy, disciplinary or civil proceedings). In order to protect the interests of the employee in the event that the employer becomes aware of a lawsuit or proceeding, this period is further extended by 12 months, after which the employer shall notify the employee on paper or electronically that he or she can collect these records within 30 days of receiving the notice.
In the event of termination or expiration of the employment relationship, the employer, together with the employment certificate, issues the employee with information in paper or electronic form about the period of storage of employee records. In this form, it also informs the employee of the possibility of collecting employee records by the end of the calendar month after the expiration of the retention period (that is, by January 31 of the following year).
The employee should also be informed of the destruction of employee records if they are not collected in a timely manner. The destruction of the records should occur in a manner that makes it impossible to reconstruct them within 12 months after the period set for the employee to collect them, if the employee has not come forward to collect them. Within this 12-month period, the employer may or may not release the records to the former employee, since the period for the employee to collect them has already expired.
In the case of the aforementioned re-employment of the same employee, the period of record retention is calculated from the end of the calendar year in which the last employment relationship with that employer was terminated or expired.
Upon request in paper or electronic form from an employee or former employee (also their heirs), the employer must issue a copy of all or part of the employee’s records.
New ICT system for handling certain contracts
This is a system for handling employment contracts, assignment contracts and activation contracts, which will facilitate the drafting, amendment, termination and handling of the expiration of contracts and other activities (e.g., calculating an employee’s vacation leave).
It contains ready-made forms for typical, simple contracts and is addressed especially to micro-entrepreneurs, entities employing up to 9 people, contractors, farmers and individuals. It also provides for the possibility of transmitting information to the tax office on collected advance income tax payments, calculating the amount of income tax, as well as performing formalities related to reporting to the Social Security and handling correspondence with the Social Security.
If the contract is handled through this system, employee records will be maintained and stored electronically in the system. Importantly, the parties to the contract can retrieve employee records or contract records from the system. The former employee will be able to do so until the end of the calendar month following the expiration of the record retention period (including family members in the event of the death of the employee or former employee).
However, when the contract was created in paper form, the employer enters its digital reproduction into the system, affixing it with a qualified electronic signature, a personal signature or a trusted signature confirming the compatibility of the digital reproduction with the paper document. Destruction of employee and contract records in a timely manner is the responsibility of the Minister of Labor.
In the case of loss of status as a micro-entrepreneur and other eligible persons, the contract is handled in the System for no longer than 2 years from the end of the calendar year in which notification of the occurrence of these circumstances was made. Then the documentation will be kept until it is destroyed.
The Minister of Labor, in consultation with the Minister of Economic Affairs, will make the ICT System available within 3 years from the date of entry into force of the Law, i.e. by January 23, 2026 at the latest.