Virtual Workplace: Employers Can Rely on Electronic Employment Records
Recent changes in legislation permit Alberta employers to use electronic signatures and maintain electronic employment records. These legislative changes are particularly helpful as employers navigate increasingly common work-from-home arrangements and virtual workplaces.
In Alberta, the use of electronic signatures and documents is largely governed by the Electronic Transactions Act, SA 2001, c E-5.5 (the “Act”), subject to applicable federal legislation. The Act aims to make electronic signatures or records legally binding and “functionally equivalent” to original signatures and hardcopies, subject to legislative requirements and limitations.
Historically, the Act did not apply to records arising from, related to, or connected with an employee-employer relationship, pursuant to the Electronic Transactions Act General Regulation, Alta Reg 34/2003 (the “Regulation”). Specifically, these records included:
- employment information and records of employment maintained by an employer under the Employment Standards Code or under any other enactment
- information or records related to the terms and conditions of employment, including a contract of employment
- information or records related to or created in the course of carrying out the duties, functions and other job related activities of an employee
- information or records related to the assignment of duties, functions and other job related activities of employment by an employer, and
- information or records related to the internal operations of an employer.
In other words, employers were required to maintain hardcopies of employment agreements, personnel files and other documents. The failure to maintain these paper records historically created the possibility that the validity or enforceability of electronic employment documents could be challenged.
On February 4, 2020, the Regulation was amended to remove these restrictions. As a result, if the parties consent to using electronic documents, employers can rely on electronic signatures and electronic records in employment documents, subject to the Act’s requirements on reliability and accessibility. Specifically, employers should be aware of the following requirements:
- The legal requirement that a person provide an original record is satisfied by an electronic record if a reliable assurance exists as to the integrity of the information in the electronic document, and the electronic record is accessible and capable of being retained.
- The legal requirement that a record be signed is satisfied by an electronic signature if, in light of all the circumstances, the electronic signature is reliable for the purpose of identifying the person and the association of the electronic signature with the relevant record is reliable for the purpose for which the record was created.
These are welcome changes as many employers adjust to a virtual workplace and an increased need for flexibility. Going forward, employers can use electronic signatures on employment agreements and maintain personnel files in an electronic format. However, employers should ensure that their agreements include a provision specifying the parties’ consent to use electronic documents.
If you have any questions about the application of the Act or challenges in your workplace, the lawyers in Field Law’s Labour and Employment Group are available to answer your questions and advise you and/or your organization.