Technological developments have promoted the emergence of solutions based on artificial intelligence (AI), with an infinity of possible applications in many different areas, including labor relations. The use of AI in this area raises several questions from a legal and human resources perspective, from the specific issues in which these tools may be useful to the limits and requirements that their use must meet not to collide with employees’ rights.
AI has undergone a meteoric evolution in recent years. In the labor field, some tools have emerged, which are based on algorithmic systems and aimed at easing the management of labor relations in companies.
Such tools offer a multitude of possibilities at all stages of the employment relationship, from the beginning to the end. There are applications, which allow to automatically filter CVs (by using criteria such us experience and even the written language used by candidates) as well as analyzing the non-verbal language of the interviewees during selection processes. Others allow companies to analyze absenteeism levels, evaluate performance and propose solutions to organize work and achieve maximum efficiency of employees during the workday. Moreover, there are tools to identify possible breaches of the employees, which help adopt a subsequent disciplinary action.
However, the use of these applications must comply with a series of requirements imposed by data protection and labor regulations, among others.
On data protection, Article 22 of the General Data Protection Regulation (GDPR) acknowledges the right of every individual not to be subject to a decision solely on the basis of automated processing of his or her data, if it produces legal effects on the individual or affects him or her “significantly in a similar way”. This implies that, in many cases and necessarily, the use of these technological tools may supplement the task performed by people working in the human resources and labor relations departments, but not completely replace it.
Moreover, the use of tools based on algorithmic systems entails the obligation for companies to inform their employees (according to Article 13.2 f) of the RGDP) about the logic applied in the automated decision in question, “as well as the significance and the envisaged consequences of such processing for the data subject”.
In the labor law area, Article 64.4 d) of the Workers’ Statute establishes a similar obligation in favor of employees’ legal representatives, who have the right to be informed about the “parameters, rules and instructions of algorithms or artificial intelligence systems that may have an impact on working conditions, access to and maintenance of employment”. The document entitled Practical guide and tool on the business obligation information on the use of algorithms in the labor field, published by the Ministry of Labor and Social Economy in May 2022, addresses the existing obligations and rights regarding algorithmic information in the Spanish labor law system at the date of publication.
These information obligations will foreseeably be complemented by the internal regulation transposing Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union, which provides, among other issues, for the obligation of the company to inform the employee in writing about the essential conditions of the contract and (of utmost relevance for the purposes at hand) the criteria by which these conditions may change.
The text agreed in the Council of the European Union on 11 March 2024 on the future Directive of the European Parliament and of the Council on the improvement of working conditions at work on digital platforms also includes the obligation to duly inform employees working on these platforms of the use of automated monitoring and decision-making systems affecting their employment, their working conditions and income, among other issues, as well as prohibiting the use of such systems for the processing of certain personal data, such as biometric data, or data referring to the emotional or psychological state of individuals.
In sum, and without forgetting the fact that the alternatives offered by this type of tools for labor relations are varied and very useful, their use is not exempt of challenges and must be made in the most reasonable way with respect to the fundamental rights of employees and in compliance with the existing regulatory framework, which includes the labor and data protection regulations.
Alberto García
