Opening the Black-Box in Private-Law Employment Relationships: A Critical Review of the Newly Implemented Spanish Workers’ Council’s Right to Access Algorithms

Abstract

Article 22 of the General Data Protection Regulation (GDPR) provides individuals with the right not to be subject to automated decisions. In this article, the author questions the extent to which the legal framework for automated decision-making in the GDPR is attuned to the employment context. More specifically, the author argues that an individual’s right may not be the most appropriate approach to contesting artificial intelligence (AI) based decisions in situations involving dependency contracts, such as employment relationships. Furthermore, Article 22 GDPR derogations rarely apply in the employment context, which puts organizations on the wrong track when deploying AI systems to make decisions about hiring, performance, and termination. In this scenario, emerging initiatives are calling for a shift from an individual rights perspective to a collective governance approach over data as a way to leverage collective bargaining power. Taking inspiration from these different initiatives, I propose ‘algorithmic co-governance’ to address the lack of accountability and transparency in AI-based employment decisions. Algorithmic co-governance implies giving third parties (ideally, the workforce’s legal representatives) the power to negotiate, correct, and overturn AI-based employment decision tools. In this context, Spain has implemented a law reform requiring that Workers’ Councils are informed about the ‘parameters, rules, and instructions’ on which algorithmic decision-making is based, becoming the first law in the European Union requiring employers to share information about AI-based decisions with Workers’ Councils. I use this reform to evaluate a potential algorithmic co-governance model in the workplace, highlighting some shortcomings that may deprive its quality and effectiveness. Algorithms, Artificial Intelligence, AI Systems, Automated Decision-Making, Algorithmic Co-governance, Algorithmic Management, Data Protection, Privacy, GDPR, Employment Decisions, Right To Access Algorithms, Workers’ Council