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Rights of employees in relation to AI

IT Law

When companies use algorithmic systems or artificial intelligence, employees are often directly affected. The increasing importance of these developments has also led to the Federal Council having to comment on the handling of artificial intelligence (AI) in the workplace and possible legal loopholes as a result of parliamentary initiatives.

The use of artificial intelligence is a topic of discussion in Parliament.

At the end of last year, members of parliament approached the Federal Council with motions on artificial intelligence in the workplace. National Councillor Niklaus-Samuel Gugger demanded with interpellation 23.4517 “Artificial intelligence and participation. Are there gaps in the law?” Information on the current legal situation. National Councillor Barbara Gysin instructed the Federal Council with motion 23.4492 “Artificial intelligence in the workplace. Strengthening employees’ participation rights” to strengthen employees’ participation rights in the use of artificial intelligence and algorithmic systems in the workplace at a legal level. The Federal Council’s statements on the two motions are now available.

Background

The two motions argue that employees consider the existing protection in connection with the use of artificial intelligence to be incomplete. Particularly when companies use algorithmic systems to make forecasts, recommendations, decisions or similar, the legal protection of employees’ rights should be strengthened. This could be done by implementing participation rights, but an extended right to information or a collective right of action for employees are also conceivable. In order to ensure effective enforcement, the Federal Council has also been instructed to examine possible sanctions against companies.

The background to both initiatives is that more and more employees fear for their jobs. There is also a great deal of uncertainty as to how these technologies will actually be used and what data will be utilised. This uncertainty is largely attributed to a lack of transparency on the part of companies. National Councillor Barbara Gysin therefore believes that the solution to this problem is a legally enshrined collective right of employees to have a say and to take legal action.

Statements of the Federal Council

In its statements of 14 February 2024, the Federal Council emphasises that artificial intelligence is not developing in a legal vacuum.

The Federal Council notes that various existing legal regulations also cover the rights of employees in relation to artificial intelligence in the workplace.

  • The Participation Act provides for a general right to information for employees. Accordingly, they are entitled to timely and comprehensive information on all matters, knowledge of which is a prerequisite for the proper fulfilment of their duties ( 9 para. 1 of the Participation Act).
  • According to the Labour Act, employees have a right of co-determination in all matters relating to health and safety, which also requires the employer to consult employees before making decisions ( 48 para. 1 lit. a Labour Act).
  • In Ordinance 3 to the Labour Act, the use of monitoring and control systems that monitor the behaviour of employees is generally prohibited unless they are necessary for other reasons ( 26 para. 1 and 2 Ordinance 3 to the Labour Act).
  • The revised Data Protection Act enshrines a duty to provide information in the case of automated decisions and has the option of requesting a review of a natural person. A data protection impact assessment is also required if the processing may result in a high risk to personal privacy or fundamental rights. This can also result from the use of new technologies such as artificial intelligence(Data Protection Act).
  • The Gender Equality Act enshrines a ban on discrimination in employment relationships, which is also applicable in the event that the employer uses artificial intelligence. The Gender Equality Act applies to employment relationships under private and public law(Art. 3 Gender Equality Act).

Possible rights of action are also provided for in these individual laws. The Labour Act, for example, provides for a cantonal labour inspectorate to ensure compliance with the provisions and criminal sanctions for violations. In the event that the Co-operation Act is violated, employees have the right to take legal action for a declaratory judgement. The FADP also provides for an investigation ex officio or upon notification if there are indications of a violation of the FADP.

The Federal Council’s dispatch of 10 December 2021 on strengthening representative actions and collective settlements in the Swiss Code of Civil Procedure is currently being discussed in parliament.

Outlook and conclusion

The Federal Council will have to continue to closely monitor developments in the field of AI. On 22 November 2023, an investigation into possible regulatory approaches for the use of artificial intelligence was commissioned. The aim of this study is to identify the specific need for regulation in various sectors. The results are expected to be available at the end of 2024. Based on this, the Federal Council would then like to close any gaps in the area of AI in the workplace at a legislative level.

  1. Sources (links [as hyperlinks in text form], citation of books)