Ten questions and answers regarding profiling and automated decision- making in the labor relationship

PAPER PROPOSAL 

AI@WORK AMSTERDAM, 5&6 MARCH 2020 

Title Ten questions and answers regarding profiling and automated decision- 

making in the labor relationship 

Author Anna Ginès i Fabrellas, Associate Professor of Labor Law, Universitat 

Ramon Llull, ESADE Law School 

Conference 

topic Labour Law & Economics 

Abstract The use of Big Data, intelligent technology and algorithms presents valuable opportunities for business, by allowing a better use and allocation of resources, both materials and personal, and to improve the competitiveness and productivity of the company. New information and communication technologies are allowing the complete digitization of the entire production chain, including the use of Big Data and algorithms for automated decision making.  Specifically, the use of Big Data, intelligent technology and algorithms will allow employers to adopt management and organizational decisions, such as selection of personnel, hiring, work assignments, promotions or, even, dismissals, automatically. The use of this technology will allow the collection and processing of important amount of data regarding workers and their job performance, which will allow the employer to profile them and adopt automated decision making through the use of algorithms.  For example, the use of information on skills, knowledge, characteristics and situation of a person allows companies to profile that person. In turn, this profiling can be used to select and hire candidates automatically using an algorithm, hence improving the process and guaranteeing a better fit of candidates to the company’s needs. Similarly, Internet connection of garments or accessories used by workers provide the company with information on the use of time and performance of their workers. This information can be used to adopt automated decisions regarding work assignment, promotions or, even, layoffs.  However, the use of this technology in the workplace also poses new legal challenges, which require their in-depth study from a transversal and multidisciplinary perspective that encompasses Labor Law, Commercial Law, business ethics and business innovation.  First, it raises new legal challenges regarding the possible violation of workers’ fundamental rights, as Internet of Things and the extraction of data can increase employer’s surveillance faculties and breach worker’s fundamental rights, including the right to equality and non- discrimination.  Internet connection of the equipment, garments or instruments used by workers dramatically increases the employer’s surveillance faculties, since the company has access to a huge number of data generated by these devises. In addition to location and use of working time, Internet of things will allow companies to generate data from every smartphone, tablet, GPS system, e-mail, webpage, social media, etc., providing personal information of workers. This data, although harmless by when analyzed separately, can generate sensitive information when cross- referenced with one another.  The processing of this data allows the configuration of profiles, defined as the establishment of behavior patterns, regarding people’s political, ideological or philosophical tendencies or, even, to determine their sexual orientation. A study by Cambridge researchers has developed a tool that allows to predict people’s personality only by analyzing their likes on Facebook. Another study has shown that a set of data allows to predict, with high level of success, one’s sex, ethnicity, sexual orientation and even political tendencies. Profiling and automated decision making can lead to situations of labor discrimination or violation of fundamental rights.  Second, it also poses challenges from the perspective of the protection of personal data, since the General Data Protection Regulation limits automated decision making and profiling. In this sense, article 22 establishes that “[t]he data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her”. Except if the decision (a) “is necessary for entering into, or performance of, a contract between the data subject and a data controller”, (b) “is authorised by Union or Member State law” or (c) “is based on the data subject’s explicit consent”. Furthermore, section three establishes that “[i]n the cases referred to in points (a) and (c) of paragraph 2, the data controller shall implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and to contest the decision”.  And, third, it generates new challenges from the perspective of business ethics, as it is essential to address issues related to the business obligation of transparency, negotiation and responsibility in data processing, profiling and automated decision-making in the context of the labor relationship.  In this context, the purpose of the paper proposed to the Conference AI@Work is to analyze the regulation of the General Data Protection Regulation to determine the legality, identifying opportunities and liabilities, of the use of profiling and automated decision-making in the work context. Specifically, for adopting labor decisions, such as hiring, salary, assignment of work, promotions or firing. In essence, the aim of the paper is to configure the insertion of profiling and automated decision-making using algorithms in the workplace in the current regulatory framework. That is, determine the assumptions, procedures and legal conditions for profiling and automated decision making with algorithms in the workplace to comply with the current legal regulation.