Is it possible to store copies of documents in an employee’s personal file 2022

What is a copy of a passport from a legal point of view?

A copy of a passport is personal data, therefore, when wondering about the legality of their use, one must refer to the Federal Law of July 27, 2006 N 152-FZ (as amended on February 22, 2017) “On Personal Data.”

Any organization that copies passports automatically becomes a personal data operator, and therefore must comply with the requirements of the law.

Firstly, you cannot remove, store or transfer to third parties a copy of your passport without the consent of its owner. For example, you came to a communication store to buy a SIM card, laid out your passport in front of the seller, and he copied it without any warning. By law he must obtain consent.

You can safely ask the company that takes a copy of your passport for an obligation not to disclose data (in the form of a separate document, a clause in a contract, a check mark on the website) or a data processing agreement, which states that the company will not transfer your personal data to third parties.

According to Art. 6 of Federal Law 152-FZ, the personal data operator must obtain written consent to the processing of personal data . The agreement must indicate the purpose of use, the list of data and the period of their storage. The exception is the court and government agencies.

NTVP "Kedr - Consultant"

LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Labor disputes » On the storage of documents in the personal file (personnel) taking into account the requirements for the protection of personal data

Question:

What documents (or copies) should be stored in the personnel (personal) file, taking into account the new requirements for responsibility for personal data of employees

Lawyer's answer

Current legislation provides for mandatory maintenance of personal files only for certain categories of employees (state, municipal employees).

However, the current legislation does not contain provisions establishing obligations for the formation of personal files for commercial organizations. Consequently, the employer (LLC) has the right to manage the personal files of employees independently, determining the procedure for creating personal files and the requirements for their management, taking into account the provisions of the legislation on personal data of employees (Federal Law of July 27, 2006 N 152-FZ “On Personal Data”).

Personal data - any information directly or indirectly related to the subject of personal data - a specific or identifiable individual (last name, first name, patronymic; gender, age; place of residence, etc.), and the processing of personal data means any action (operation) or a set of actions (operations) performed with or without the use of automation tools with personal data, including collection, recording, systematization, accumulation, storage, clarification (updating, changing), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data (Article 3 of Federal Law N 152-FZ).

The employer processes the employee's personal data in order to ensure compliance with laws and other regulations, assist employees in employment, training and promotion, ensure the personal safety of employees, control the quantity and quality of work performed and ensure the safety of property. Employees must be familiarized, against signature, with the employer's documents establishing the procedure for processing personal data of employees, as well as their rights and obligations in this area (Article 86 of the Labor Code of the Russian Federation).

At the same time, the procedure for storing and using personal data of employees is established by the employer in compliance with the requirements of the Labor Code of the Russian Federation and other federal laws (Article 87 of the Labor Code of the Russian Federation).

Taking into account the provisions of Art. 88 of the Labor Code of the Russian Federation, the employer transfers the employee’s personal data within one organization in accordance with local regulations, which the employee must be familiar with upon signature. However, labor legislation does not answer the question of which document should establish the procedure for storing, transferring and using personal data of employees. In this regard, it is possible for the employer to adopt a local regulatory act establishing the procedure for storing, transferring and using personal data of employees (regulations, etc.).

{Question: ...Is there an obligation for organizations to take and store copies of SNILS to create personal files for employees? (Expert Consultation, 2017) {ConsultantPlus}}

We also inform you that the current legislation does not establish a list of documents that must be in the employee’s personal file. This list is determined by the employer independently at his own discretion.

{Question: What documents should be in an employee’s personal file? Is a photograph required in a personal file? (“Website “Onlineinspection.RF”, 2017) {ConsultantPlus}}

In our opinion, the list of documents constituting a personal file includes: the employee’s application for employment, a copy of the employer’s employment contract, orders issued in relation to a specific employee in the implementation of labor relations, and his statements, work record book, copies of documents drawn up by the employer when employing an employee for the first time (if this was the case), copies of documents containing personal data of employees (copies of tax registration certificate, certificate of registration in the OPS system, etc.), and other documents related to the work of a particular employee .

{Question: Is the employing organization obliged to maintain personal files of employees? (Expert Consultation, 2012) {ConsultantPlus}}

Thus, the current legislation does not establish the procedure for maintaining an employee’s personal file. In our opinion, the employer has the right to store copies of the employee’s documents (copies of passport, SNILS, work book) in his personal file, provided that he obtains consent from him to store and process personal data.

Selection of documents:

Question: Is the employing organization obliged to maintain personal files of employees? (Expert Consultation, 2012) {ConsultantPlus}

Question: ...Is it possible to store these copies of Russian and foreign passports in the employee’s personal file? Is the employee's consent required for this? (Expert Consultation, 2014) {ConsultantPlus}

Question: ...Is there an obligation for organizations to take and store copies of SNILS to create personal files for employees? (Expert Consultation, 2017) {ConsultantPlus}

Question: Is it possible to store paper copies of an employee’s documents in a personal file: passport, SNILS, work book, etc.? (“Website “Onlineinspection.RF”, 2017) {ConsultantPlus}

Article: Documents with personal data in the archive (Kozhanova E.) (“HR service and personnel management of the enterprise,” 2022, N 7) {ConsultantPlus}

Form: Inventory of documents in the employee’s personal file (filling sample) (Prepared by ConsultantPlus specialists, 2017) {ConsultantPlus}

The explanation was given by Igor Borisovich Makshakov, legal consultant of LLC NTVP Kedr-Consultant, October 2017.

When preparing the answer, SPS ConsultantPlus was used.

This clarification is not official and does not entail legal consequences; it is provided in accordance with the Regulations of the CONSULTATION LINE ().

Art. 5 152-FZ states:

The processing of personal data must be carried out on the basis of the principles of compliance of the purposes of processing personal data with the goals predetermined and stated when collecting personal data, as well as with the powers of the operator

If the company’s goal is to identify a person, then the first page of the passport is sufficient. It is no longer legal to make a copy of the entire document.

We conclude that a copy of the passport can only be given to the personal data operator and only with an agreement.

But practice shows that everything is not so simple. Don't give me a copy of your passport? We do not return goods to you. Don't give me a copy of your passport? We do not enter into an agreement with you. Don't give me a copy of your passport? We are not hiring you.

Firstly, in each of these cases it is necessary to deal with the issue of the legality of the requirements. Secondly, it is necessary to develop a universal method of action so as not to expose yourself and not enter into conflict.

Commitment not to take up employment with competitors

When a valuable employee leaves, he takes with him not only his experience, but also the company’s secrets. For example, a customer base, contacts with suppliers, etc. A similar situation occurs when such an employee gets a part-time job at a competing company. To protect their secrets, companies take a special document from employees - an obligation not to work for competitors. But in fact, such a document does not protect corporate secrets.

The company does not have the right to prohibit an employee from working in other organizations. The employee decides where to work (Article 37 of the Constitution, Article 2 of the Labor Code of the Russian Federation). Therefore, even a written commitment will not prevent him from quitting and going to work for a competing company, where he will be able to transfer classified information from his previous employer. The court will support the employee if you try to recover damages from him.

Current

Do not enter into liability agreements with inappropriate persons; transfer valuables using a one-time acceptance certificate. Obtain consent from employees every time you need to transfer their personal data to third parties. Do not require an obligation from the employee not to take a job with competitors; it is better to enter into an agreement on non-disclosure of trade secrets.

Instead, enter into a non-disclosure agreement with the employee regarding trade secrets. In the contract, specify the criteria for a trade secret or production secret, the procedure for working with such information, its protection and the conditions of liability for violation. Specify the period during which the trade secret regime is valid, including after dismissal. Also describe the employee’s actions to maintain secrecy after dismissal (Part 4, Article 11 of Federal Law No. 98-FZ of July 29, 2004).

A non-disclosure agreement is a legal document that will protect company secrets. If the employee violates the obligation, the former employer will have the right to demand compensation.

Copy of passport for employment

The position of the courts and Rostrud is clear - the employer does not have the right to store copies of employee documents.

Some companies prepare personal files for employees, although this is not required. An exception is state and municipal employees (Decree of the President of the Russian Federation of May 30, 2005 No. 609, Article 30 of the Federal Law of March 2, 2007 No. 25-FZ).

However, if the organization wants to, then no one will forbid it from maintaining the personal files of its employees. But the list of documents that can be placed in it is regulated:

application form, autobiography, resume;
application for a job;
copies of education documents;
recommendations and characteristics;
medical certificates;
employment contract;
extract from the employment order;
extracts from the protocols on election to a position, on the results of the competition for a vacant position;
personal card.

A copy of the passport is required only for civil servants. The rest have the right not to transfer it to the personnel service.

In accordance with paragraph 2 of Art. 5 of Law No. 152-FZ, the processing of personal data must be limited to the achievement of specific, predetermined and legitimate purposes.

The employer needs passport data only to conclude an employment contract, so it cannot be stored.

Judicial practice confirms this. For example, resolution dated March 14, 2014 No. 15AP-22502/2013 in case A53-12557/2013.

It turns out that you must provide the employer with passport data to conclude an agreement, but do not leave a copy for storage.

Copy of passport as an attachment to the contract

Conclusion of contracts is a common thing. Most often, only passport data is required, and not a copy. But what to do if the organization insists on scanning the document, and you resist?

You may be refused to enter into an agreement, citing Art. 421 of the Civil Code of the Russian Federation “Freedom of contract”.

Citizens and legal entities are free to enter into contracts.

Compulsion to enter into an agreement is not permitted, except in cases where the obligation to enter into an agreement is provided for by this Code, the law or a voluntarily accepted obligation.

You cannot force a company to enter into an agreement with you. What to do with personal data?

Read the contract itself. Most often, the requirement to present a copy of your passport is included in one of the clauses. It also contains consent to the processing of personal data.

In addition, you need to look at the by-laws and regulations developed by the organization itself. We’ll tell you below what to do if you need to conclude an agreement, but it’s scary to leave a copy of your passport.

Fines for illegal possession

Officials responded in their own way to the question of whether it is possible to store copies of documents in an employee’s personal file in 2022, but in judicial practice there are already cases where judges considered it unnecessary to store copies with the employer. In particular, the resolution of the Federal Antimonopoly Service of the North Caucasus District dated March 11, 2014 in case No. A53-10287/2013 stated that in order to process the personal data of employees hired, it is enough to verify the information with the originals, and a copy of the passport is not stored in the employee’s personal file must.

It’s up to you to decide whether to include copies of their personal papers in employees’ files or not. Let us only remind you that for violating the rules in the field of personal data, you are fined under Art. 13.11 Code of Administrative Offenses of the Russian Federation. Thus, for processing information in cases not prescribed by law, as well as for processing incompatible with established goals, officials are fined 5,000-10,000 rubles, and organizations - 30,000-50,000 rubles.

In light of the explanations of Rostrud, employers will be fined under clause 2 of Art. 13.11 Code of Administrative Offenses of the Russian Federation. According to it, for processing information without the written consent of the subject of personal data, the fine for officials is increased to 10,000-20,000 rubles, and for companies - to 15,000-75,000 rubles.

Returning goods using a copy of your passport

When filling out a package of documents for a return and exchange transaction, cashiers often ask for a copy of your passport, referring to the rules established by the accounting department.

In fact, we need to look not at accounting, but at the law “On the Protection of Consumer Rights”, methodological recommendations for accounting and registration of operations for the receipt, storage and release of goods in trade organizations, approved by letter of Roskomtorg dated July 10, 1996 N 1−794/32− 5, instruction of the Bank of Russia dated March 11, 2014 N 3210-U “On the procedure for conducting cash transactions by legal entities and the simplified procedure for conducting cash transactions by individual entrepreneurs and small businesses.”

According to these documents, the seller must identify the buyer’s identity when returning money, but does not have the right to make a copy . It turns out that you will have to show your passport, but you cannot make a copy of it.

Open date resignation letter

When an employer doubts the loyalty of a newcomer, he is asked to submit a letter of resignation with an open date. This allows, in the event of a conflict, to fire an intractable employee on a neutral basis. Also, the work book will not be damaged by a record of dismissal for absenteeism, failure to pass a test, or for other negative reasons.

The law allows you to dismiss an employee for violating labor discipline. The main thing is to follow the procedure for issuing a penalty (Articles 192–194 of the Labor Code of the Russian Federation). And the courts support employers in this. The same applies to dismissal due to failure to pass the test. There is a probationary period for this purpose. At this time, both parties to the employment contract decide whether to continue the employment relationship (Article 70 of the Labor Code of the Russian Federation).

Important

If a GIT inspector finds a statement with an open date in an employee’s personal file, a fine of up to 50,000 rubles cannot be avoided (Article 5.27 of the Administrative Code). When considering cases of voluntary dismissal, courts determine whether the employee really wanted to terminate the employment relationship. If it turns out that the employee wrote a letter of resignation on the day of employment, the court will have the right to reinstate him at work. The company will be obliged to pay the employee a salary for the period of forced absence, and will also have to look for a way to fire him again.

During the probationary period, burden the employee with all types of work that he has to perform, watch how he carries out assignments, record shortcomings, and analyze the reasons for unsatisfactory performance of duties. Do not hesitate to initiate dismissal proceedings due to failure to pass the test - present a notice of failure to pass the test indicating the reason.

How to protect yourself?

If it is impossible to refuse to copy a passport, lawyers unanimously advise putting a restrictive inscription on the copy of the passport.

In any place that cannot be cut off without ruining the image, you must write: “Organization N is provided with a copy of document N for the purposes of (list).” The inscription should not cover the passport data. This will make it impossible to use the copy for illegal purposes.

Another way to protect yourself is to withdraw your personal data in writing and request the destruction of all copies . To do this, write an application in two copies. Ask for a receipt stamp on yours.

How to properly store copies of documents in employees’ personal files