Spanish Guide to corporate obligations on the use of algorithmic information in the workplace

Spain Algorithmic information in the workplace: Guide to corporate obligations on the use of algorithmic information in the workplace and instrument for practical application published by Spanish Ministry of Labour and Social Economy.

The aim of this guide is to present in a single document the obligations and rights pertaining to algorithmic information in the Spanish legal-labour system. In other words, it sets out the company’s obligations regarding the information that must be provided to workers and their legal representation, together with the information they may legally request. In addition, the guide describes the company’s obligations regarding algorithm negotiation and auditing and impact assessment.

Finally, the guide includes a questionnaire that can be used to identify and systematise information obligations arising from the use of algorithms and automated decision systems in the workplace.

Current regulations include two plans for information rights regarding the use of algorithms or automated decision systems in the employment relationship: 1) an individual plan based on Article 22 of the General Data Protection Regulation Act (henceforth, GDPR); 2) a collective plan based on Article 64 of the Statute of Workers Rights (henceforth, SWR).

1) Individual right to information

Article 22 of the GDPR requires employers to provide relevant information to workers who are subject to fully automated decisions, including profiling, without human intervention.

Transparency in the use of algorithms and automated decision systems is considered essential to personal data protection, which requires that the use of technology to make business decisions be performed transparently, informing those affected of what methods are used and for what purposes (Article 6, GDPR).

The individual right to obtain information on fully automated decisions about workers (Articles 13.2.f, 14.2.g and 15.1.h, GDPR, in relation to Article 22) is addressed in this context.

In this respect, to be considered effective, ‘human intervention’ must be significant, i.e. carried out by a person with competence and authority over the decision, appraised of all available information. When human intervention is limited to replicating the decision made by an algorithm, it cannot be viewed as significant, and the decision process must be considered fully automated and treated as such.n íntegramente automatizada.

Furthermore, the existence of human intervention should be apparent throughout the decision process. For example, if an algorithm selects the ten best candidates for a job vacancy, automatically ruling out all others, this constitutes an automated decision, even though the last ten are evaluated via human intervention.

2) Collective right to information

Article 64.4.d of the SWR requires employers to provide relevant information to workers’ collective representatives concerning the use of algorithms or artificial intelligence systems regarding decisions that may

affect working conditions, access to employment or maintenance of employment, including profiling.

Which Spanish employers are subject to algorithmic information obligations?

All employers that use algorithms or automated decision systems for personnel management (including decisions on selection, hiring, schedules, task allocation, productivity measurement, promotions, dismissals and salaries) are subject to algorithmic information obligations.

The type and level of information to be supplied, and those entitled to receive it, vary according to whether the workers have collective representation:

All companies, whether or not the workforce have collective representation, are required to provide individual information on automated decisions without human intervention that affect the workers. Moreover, the workers, individually or through their representation, may demand this information (Articles 13.2.f, 14.2.g and 15.1.h, GDPR, in relation to Article 22).

Companies where the workers have collective representation, in addition to the above-described information obligation to individuals, must comply with the collective information obligation, providing the workers’ representatives with the information referred to in Article 64.4.d of the SWR.

What information must the company provide?

Employers’ obligation to provide algorithmic information is regulated at two levels: individual and collective.

At the individual level, Articles 13.2.f, 14.2.g and 15.1.h of the GDPR, in relation to Article 22, require the employer to inform workers who are subject to automated decisions, including the preparation of profiles, on “the existence of automated decisions, including profiling, referred to in Article 22, sections 1 and 4, and, at least in these cases, significant information on the logic applied and on the importance and expected consequences of this process for those concerned”.

At the collective level, Article 64.4.d of the SWR requires the company to inform the workers’ legal representation of “the parameters, rules and instructions governing algorithms or artificial intelligence systems that affect decision-making with respect to working conditions, access to employment and maintenance of employment, including profiling