As the usage of remote work tools increases, so does the demand for distance communication between employer and employee. Many would say that this is already a fact and on-going employee issues are easily addressed by sending an e-mail or making an entry in the company’s human resources management system. Yet the question remains if this is permissible under Bulgarian labor law and if it would be accepted by the Bulgarian state authorities in case of a dispute.
Although a legislative gap is the “usual suspect” when discussing digitalization of the employment relationships, the Bulgarian Labour Code was amended back in 2015 to allow employers create and keep employment related documents in an electronic form. Further, in 2018 the requirements for maintaining a record of the employer – employee relationships in an electronic form were laid down in the Ordinance on the Electronic Creation and Storage of Employment Related Documents in the Employee Files (referred below as the “Digital File Ordinance”). Said changes in fact gave legal ground to employers in Bulgaria to create, sign, exchange and store documents related to the employment relationship electronically, as well as to use human resources management systems for the creation and storage of electronic documents and statements.
On the implementation stage, however, the introduction of the digital employment file has not been as intensive as expected. Partly this is due to the legal and technical requirements introduced by the Digital File Ordinance. For the employer/ employee’s electronic statements and documents to have legal effect, employers must introduce specific rules in their internal acts and must dispose of tools for electronic identification, exchange, and storage of relevant employment documents, which are defined by the law. The technical requirements are based on the solutions for electronic identification and trust services recognized by the European union law and in particular Regulation No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation). The Digital File Ordinance imposes the use of a qualified electronic signature for identification of the employer, as well as the implementation of a qualified electronic registered delivery service, qualified electronic seal, and qualified electronic time stamp, respectively for the exchange, creation and storage of electronic statements and documents which have a legal effect on the employment relationship.
In Bulgaria, as worldwide, the real test of the legal framework related to the electronic communications between employee and employer started with the Covid 19 pandemic, when the business was forced to think of the legal compliance of any statements and documents which exist in an electronic form only. As a result, the competent administrative authorities in Bulgaria have been addressed with numerous requests to provide information and clarification on the existing legal framework and in that process, they have confirmed that compliance with the requirements and the standards provided for in the Digital File Ordinance is a precondition for the lawfulness of the electronic documents and statements generated by either employee or employer.
Noting that the implementation process raises questions from both legal and business perspective, it is also true that the purpose of the technical measures required by the law is not only to guarantee a secure exchange of documents between employer and employee but also a trustworthy mechanism for generation of an evidence of their lawful creation and communication. And this is not a rare necessity, especially in labor litigation and labor inspections, which would most certainly increase now that distance work policies have become a standard rather than an exception.
By Victoria Marincheva, Senior Associate, Tsvetkova Bebov & Partners, Bulgaria, member of Eversheds Sutherland