Introduction to the topic
The topic of artificial intelligence (AI) is becoming increasingly important not only in our daily lives, but also specifically in labor law. The use of AI offers certain advantages for employers, employees and works councils, but also disadvantages. In addition, it is important to avoid individual legal risks in connection with the possibilities of AI. In this short article, we would like to present an excerpt of the points of contact between AI and labor law.
Use of AI by employers
On the one hand, employers can instruct an employee to use AI-supported tools within the scope of the right to issue instructions (Section 106 of the German Trade Regulation Act (GewO)). The use of the chatbot ChatGPT ("chat generative pretrained transformer"), for example, is relevant in this context. On the other hand, an employer is free to prohibit their employees from using AI to perform their assigned tasks.
AI in the HR department
AI is also playing an increasingly important role in companies' human resources departments. For example, AI is having a growing influence on application and hiring processes. Certain legal parameters must be observed in order to avoid, for example, claims for damages by applicants due to discrimination in accordance with §§ 7, 15 AGG or due to a data protection violation under the General Data Protection Regulation (GDPR).
Impact of AI on collective labor law
The use of AI also has an impact on collective labor law. For example, the creation of guidelines for personnel selection in the case of hiring, transfers, reclassifications and terminations using AI can lead to a right of co-determination for the works council. This has since been explicitly regulated by law in § 95 (2a) of the German Works Constitution Act (BetrVG). It is also conceivable that the works council will have a right of co-determination when introducing and using AI-supported facilities that are designed to monitor the behavior or performance of employees (Section 86 (1) No. 6 BetrVG). Should the introduction and use of AI lead to a fundamental change in the organization of the company or to the introduction of fundamentally new working methods in a company, the assumption of a change in operations within the meaning of § 111 p. 3 no. 4, 5 BetrVG is also conceivable. This would trigger the corresponding participation rights of the works council under § 111 S. 1 BetrVG.
European perspective: AI Regulation
At the European level, the introduction of a so-called AI regulation is currently being sought, which is intended to contain framework provisions for dealing with AI in labor law. It remains to be seen how things will develop.
Conclusion and recommended course of action
As shown, the introduction of AI is playing an increasingly important role in both individual and collective labor law. Employers are therefore advised to address this issue at an early stage in order to identify and limit the legal risks.
We will be happy to assist you with any questions you may have on the subject of AI.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.