New Technologies in the Workplace and Legislations

-- By IppeiKawase - 5 Jan 2021

Introduction

New technologies have been used in the workplace, ranging from relatively simple software to more complex computer programs, to support employer’s decision-making. With the introduction of new technologies, legal questions have arisen, and legislators have attempted to address these new issues by adopting new legislation. This essay will examine two legislations – GDPR and Illinois statute – in a situation of recruitment and termination and clarify the challenges and issues of such legislations.

GDPR

This section will focus on the General Data Protection Regulation (GDPR) Article 22, which regulates “automated individual decision-making,” and discuss issues of the provision by taking an example of recent litigation.

The Content of the Law

GDPR Article 22 aims to protect people from unfair automated decision making.‍ It provides, “The 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.” Regarding the term “based solely,” the European Data Protection Board (EDPB) explains that if human reviews and takes account of other factors in making the final decision, that decision would not be ‘based solely’ on automated processing. The EDPB further explains that you cannot avoid Article 22 by “fabricating human involvement.”

Uber Case

In 2020, a UK-based union filed legal action in the Netherlands against Uber over the use of an algorithm to dismiss four Uber drivers. The plaintiff claims that the dismissals violate Article 22. They argue that Uber’s decisions are based exclusively on automated processing of the drivers’ personal data, and there is no significant human intervention, by showing the fact that the messages sent by Uber to the drivers contain largely standardized and very general texts. In response, Uber argues that the activities of the drivers have been assessed by their employees.

The Issues of the Law

Although the EDPB notes that “fabricating human involvement” cannot be an excuse to escape from Article 22, the standard for judgment of whether an employer fabricates human involvement is not clear. Considering that there can be a certain kind of human involvement with a computer program to a certain extent, including algorithm in the Uber case, it seems possible for the employer to explain such involvement afterward even if there was no human involvement in a way that EDPB assumes. In addition, the argument regarding the messages sent by Uber seems not so persuasive because employers can make their employees involved in the decision-making of dismissal and send a message whose content is the same as automatically generated by the algorithm.

Illinois Statute

While the GDPR does not specifically focus on the workplace, the Illinois legislature has recently passed a new law regulating “artificial intelligence analysis” in job interviews. This section will analyze issues of this new legislation.

The Content of the Law

The law is called the Artificial Intelligence Video Interview Act, which became effective on January 1, 2020. It requires an employer that “asks applicants to record video interviews and uses an artificial intelligence analysis of the applicant-submitted videos. . .” (1) to “Notify each applicant before the interview that artificial intelligence may be used to analyze the applicant’s video interview and consider the applicant’s fitness for the position”; (2) to “Provide each applicant with information before the interview explaining how the artificial intelligence works and what general types of characteristics it uses to evaluate applicants”; and (3) to “Obtain, before the interview, consent from the applicant to be evaluated by the artificial intelligence program as described in the information provided.”

The Issues of the Law

The first and most critical problem is that the law does not define “artificial intelligence” or “artificial intelligence analysis.” Because the concept of “artificial intelligence” itself is controversial and has not obtained a common understanding in both legal and general context, the scope of the law is ambiguous. Employers have difficulty understanding whether the organization or specific act of the organization falls within the scope of the law. In addition, although the law imposes the three requirements of notification, explanation, and consent, the precise meaning of each word is not clear. For example, even if assuming the minimum or core meaning of “artificial intelligence,” it is unclear whether the law covers activities in which employers use “artificial intelligence” to generate or improve questions during interviews or to enhance their recruiting processes in a way that is not directly connected with a specific candidate but affect each of them as a result. Furthermore, the concrete and practical measure of obtaining consent from candidates cannot be easily determined. Although just obtaining an oral answer “I agree” from a candidate seems to satisfy the third requirement literally, it remains a question whether such an answer substantially represents the candidate’s understanding of and consent to the use of “artificial intelligence” in the interview.

The Significance of the Law

The Illinois law has its significance in that it raises questions regarding a new kind of technology and its use in the workplace in connection with legislation. However, while the law covers a wide range of employers (affecting positions based in Illinois), the language of the law is still ambiguous, and it does not include provisions regarding enforcement such as administrative request, direction, or penalty. Thus, it seems that in reality, its disadvantages, such as administrative burdens on employers, outweigh its significance of raising questions in this field. Since relevant laws regarding discrimination and personal information already exist, the Illinois legislature should clarify the purpose of the new law and adopt concrete measures necessary to achieve the purpose. More specifically, it is not necessary to use the term “artificial intelligence”, but rather, the legislature can and should use clear and specific language that expresses certain types of technology or activity using such technology that the legislature aims to regulate. Even in that case, the legislature can call it “artificial intelligence law” as a common name if they wish.

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