Grant Machum and Guy-Etienne Richard

Maintaining employment files requires physical space and can be costly. Nowadays many employers are moving away from keeping paper files to electronic storage. This brings up two issues:

1. Are employers required to keep a paper file if it is in electronic format?
2. How long do employers need to retain employment files?

Are employers required to keep a paper files?

If employers decide to keep the records electronically, they must ensure they have a process that protects the integrity and the security of the information, and a written procedure outlining that process. For example, digital copies should be exact copies of the original and kept in a non-changeable form. This will help ensure the electronic copies are admissible in court.

Alberta is the only Canadian province which does not allow employment files to be stored solely in electronic format. The Electronic Transactions Act General Regulation specifically excludes employment records, suggesting that a paper copy should be kept on site.

All other provinces allow electronic files to be kept without the need for a paper copy. Legislation applicable in the various provinces varies slightly and employers are advised to consult the specific legislation in their province to ensure compliance.

How long do employers need to retain employment files?

The minimum period that employee records must be kept for varies across the provinces, as well as the various legislation. For example, provincial employers in Nova Scotia should keep the following legislation in mind:

• The Nova Scotia Labour Standards Code requires that records be maintained for three years.
• The Limitation of Actions Act generally requires that a claim be brought within two years of the date the claim is “discovered”.
• The Occupational Health and Safety Act and the First Aid Regulations both require that documents relating to incidents or orders be kept for five years.
• The Workers’ Compensation Act does not specify a retention period, but allows claims for injury or disease up to five years after a workplace accident.
• The Income Tax Act allows Revenue Canada to perform an audit within six years from the end of the tax year.

Accordingly, retention period can vary greatly depending on the nature of the document and province. The table below provides a general overview of the relevant periods (in years) for various employment matters for each province.

Depending on the nature of the documents (e.g. records of accidents, payroll, personal information, criminal records, etc) the retention period may vary.

Limitation legislation generally allows claims to be brought up to an absolute maximum of 15 to 30 years from the date of incident. However, there are some exceptions: where a physical altercation has occurred at work, such as assault, battery, or sexual abuse (or you suspect such an altercation may have occurred), records should be kept indefinitely. Such a claim, in particular the injury it causes, may not be “discovered” by the employee until years after the fact.

As retention periods can vary greatly, we would be pleased to advise on the specific legislative requirements for your documents.

This update is intended for general information only. If you have questions about the above information, and how it applies to your specific situation, please contact a member of our Labour & Employment group.

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