Labor law currently allows any document between the employee and the employer to be signed electronically by means of a qualified or advanced signature.
The two types of technology have different technical characteristics and provide distinct levels of security and legal recognition:
- the qualified signature shall be the implicit equivalent of the handwritten signature recognized in any EU State;
- the advanced signature has limited recognition and it needs to be proved.
According to OUG nr. 36/2021, work papers can be signed with both advanced and qualified electronic signature. The state grants in the field of labor relations the value of handwritten signature and advanced signatures, but this recognition applies exclusively on Romanian territory.
Advanced signatures shall be issued on the basis of a simple digital certificate and, in order for these advanced signatures to be valid and enforceable, those who use them must be able to demonstrate that the technical way in which they have issued these signatures complies with all four detailed requirements of the eIDAS Regulation:
- refer exclusively to the signatory;
- allow the identification of the signatory;
- they are created using electronic signature creation data that the signatory can use with a high level of confidence exclusively under its control;
- they are related to the data used for signing, so any subsequent changes to the data can be detected.
Advanced electronic signatures can be issued by states or private organizations, and they are not of legal value by default and must be proven.
Qualified electronic signatures are an advanced type of signature, which by the way they are issued (using a qualified certificate and a qualified signature issuing device) implicitly ensures that the four conditions are met both at the time of signature and thereafter. These two additional tools (qualified certificate and qualified signature issuing device) ensure a direct and undeniable link between a person’s real identity and the electronic identity, so that these types of electronic signatures implicitly provide legal value and are considered equivalent to handwritten signatures, further evidence proving this is unnecessary. Qualified signatures are only issued by qualified trust service providers listed in a European register and qualified signatures are recognized as equivalent to handwritten signatures anywhere in the EU.
In short, any qualified signature is advanced, but not any advanced signature is qualified. While, for the qualified signature, its issue implicitly ensures, without any doubt, that it is the signatory who signed the document and no further evidence is required, the same does not apply to the advanced signature, for this type of signature additional proof is required that the advanced signature really belongs to the person appearing as a signatory.
Electronic signature in employment relationships from a company perspective
- employers may choose to use either of the two types of electronic signatures (advanced or qualified);
- whatever technology is used, it is also necessary to obtain employees’ agreement to use this form of distance signing of work papers;
- the fact that the Labor Code specifies the possibility of using electronic signature in employment relations does not oblige either the employer or the employee to use it;
- an employer will be able to use the electronic signature with some employees and with others will be able to continue using the handwritten signature, and there is no impediment to use it at the same time.
In conclusion, companies should conduct a careful and do a detailed analysis of the two signature technologies, because risks are not equally distributed in terms of security and trust. If, when using qualified signatures, there is a sum of the elements certifying that signature, taken by the supplier of qualified certificates, for advanced ones, additional precautions are needed which firms themselves must take.