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The EU draft Regulation on AI: a threat to labour protection?

In early April 2021, a draft EU Regulation on a European Approach to Artificial Intelligence was leaked to the press. The draft has been already attentively commented, among others, by Dr Michael Veale (UCL Faculty of Laws). The draft Regulation, however, raises many specific concerns about the use of AI at work that must be addressed urgently. This blog is an initial reaction to the leaked instrument, hoping that other labour experts will add their analyses.

Recital 35 of the draft Regulation mentions that “AI systems used in the recruitment, task allocation or evaluation of workers may appreciably impact workers’ future career prospects and livelihood and should also be classified as high-risk”. It gives heed, very generically, to the potentially discriminatory impact of AI in the world of work and the risks it poses to workers’ privacy.

While classifying AI systems used at work as high-risk is appropriate, the draft Regulation is far from being sufficient to protect workers adequately.

Firstly, the draft mentions: “AI systems intended to be used for recruitment – for instance in advertising vacancies, screening or filtering applications, evaluating candidates in the course of interviews or tests – as well as for making decisions on promotion and termination of work-related contractual relationships, for task allocation and for monitoring and evaluating work performance and behaviour”.

As just said, it provides that these systems shall be classified as high-risk and, therefore, subject to specific safeguards. At the same time, it specifies that the assessment of conformity of these systems to existing rules and safeguards will only be subject to “self-assessment by the provider”. This is, disappointingly, a lower level of protection than other high-risk systems that require “stricter conformity assessment procedures through the involvement of a notified body”. Given the extraordinarily severe consequences that AI systems at work can entail, and the particular nature of workplaces, where workers are already subject and vulnerable to their employers’ extensive powers and prerogatives, it is highly worrisome that this draft provision was not subject to any form of social dialogue at the EU level.

Moreover, the draft Regulation seems to take for granted that if AI systems used at work comply with the procedural requirements it sets forth, these systems should be allowed. The use of AI to hire, monitor (and, therefore, surveil) and evaluate “work performance and behaviour” is deeply problematic. Several EU national legislations ban or severely limit the use of tech tools to monitor workers. Moreover, Spain just introduced new rules granting algorithmic transparency at work. If adopted, the draft Regulation risks prevailing over these more restrictive legislations and triggering a deregulating landslide in labour and industrial relations systems around Europe. This is all the more serious because these national legislations often require to involve the trade unions and works councils before introducing tools allowing any form of tech-enabled surveillance and also partially ban this surveillance. The draft Regulation, instead, does never specifically mention the social partners and their roles in regulating AI systems at work.

If the Regulation is not corrected, the more protective national legislation risks being overcome by this EU instrument: this instrument, in other words, risks functioning as a “ceiling” rather than a “floor” for labour protection.

The draft also provides that high-risk AI systems must be built allowing the possibility of human oversight. People in charge of this oversight should be put in the position, among other things, to “decide not to use the high-risk AI system or its outputs in any particular situation
without any reason to fear negative consequences.” Nonetheless, the Regulation does not explicitly mention the need to provide managers and supervisors with the specialised training and powers to counter the specific implications of the use of these systems in the context of work. WIthout explicit workplace protection, this provision may not adequately prevent disciplinary actions from employers.

These, again, are only some of the concerns that the leaked draft EU Regulation on AI raises about work and labour protection. It is extremely urgent for the social partners and labour experts to reflect and act on this instrument.

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