Works councils should have a say in the use of AI and home office


The federal government is reacting to the increasing use of artificial intelligence (AI) systems in the world of work. It wants to make it clear that the rights of the works council in the design of the work environment and processes in the company also apply if algorithmic decision-making systems are to be used there. This emerges from the draft for a works council modernization law that the federal cabinet launched on Wednesday.

Works councils must, according to the Initiative be able to “understand, evaluate and help shape complex IT contexts while at the same time taking into account general issues such as equality between women and men”. This applies, for example, to automated decisions in personnel selection. The works council is said to be “to participate within the framework of its existing legal rights”. This also applies if an AI itself develops guidelines for hiring applicants.

In 2019, Zalando made headlines as the Berlin online retailer monitors thousands of employees with the Zonar analysis system. The organization AlgorithmWatch then came to the conclusion that the use of such software equipped with AI for personnel management in Europe is often illegal and takes place “at least in a legal gray area”. She demanded that works councils should be able to actively enforce their rights to information and co-determination vis-à-vis employers as early as the planning phase of AI systems.

The government also wants to ensure that the works council is allowed to consult an expert in order to be able to assess the “introduction or use of artificial intelligence” according to its tasks. In this case, the employer and the institutionalized employee representatives would only have to agree “on the costs and the person” of the expert. In order to be able to have permanent access to an expert on the use of AI at short notice, such an expert should also be permanently available to the works council.

The executive also wants to implement a passage from its AI strategy. According to this, co-determination in the company and early involvement of the works council strengthen the trust and acceptance of the employees for automated decisive systems. This is the basis “for a positive attitude towards AI in general as well as for a successful implementation of AI applications at the company level”.

The government does not provide a definition of what it means by artificial intelligence in the draft. She only writes that AI-based systems can be purely software-based and can only operate in the virtual world. Corresponding algorithms are partly embedded in hardware.

Works councils should also be given a right of co-determination when designing home office regulations. In this way, they could advocate a uniform and binding legal framework for mobile work, the cabinet justifies this project. It is about the amount of time teleworking, the location from which mobile work can and is allowed, security aspects and rules of accessibility.

“While respecting the priority of the face-to-face meeting”, works councils should also be able to decide alone and freely whether they should use video and telephone conferences when conducting their meetings. According to the plan, company agreements, reconciliation of interests and social plan can in future be concluded with a qualified electronic signature.

The government wants to emphasize that the employer is the person responsible for processing personal data within the meaning of the General Data Protection Regulation (GDPR). It also says: “Employers and works council support each other in compliance with data protection regulations”. The executive estimates the costs for the economy at a good four million euros per year, around 1.1 million of which for AI support for employee representatives alone.


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