ARTICLE
21 February 2024

Diffusion Of Artificial Intelligence In Employment Law

Bicer Guner

Contributor

Bicer Guner
As the world continues to embrace technological advancements, one topic that has been gaining significant attention is the impact of Artificial Intelligence ("AI") on the labor force.
Turkey Employment and HR
To print this article, all you need is to be registered or login on Mondaq.com.

As the world continues to embrace technological advancements, one topic that has been gaining significant attention is the impact of Artificial Intelligence ("AI") on the labor force. In recent years, AI has revolutionized various industries, automating tasks that were once performed by humans. This shift has undoubtedly transformed traditional work dynamics. Employers are now faced with new challenges and opportunities as they navigate this evolving landscape.

AI encompasses science-driven, relationship-based and structural complexities, unlike previous technological advances that focused solely on automating or replacing routine manual labor. More specifically, task automation can restructure certain types of jobs, typically mundane low-level jobs, similar jobs involving routine and repetitive tasks, and jobs that place employees in potentially dangerous or hazardous situations. In addition, the emerge of robotics, artificial intelligence and Internet of Things is a major driver for job creation through multiple channels, as well as new companies and industries.

I. EMPLOYERS' ADAPTATION TO ARTIFICIAL INTELLIGENCE

AI integration on the employer side however, is more complex and raises legal and ethical issues due to the reliability of the employment relationship. Within the scope of the employer's management rights, it is increasingly utilized in the workplace to monitor employees' activities, to measure and evaluate their performance. Additionally, it is emerging as algorithmic management, not only in terms of economic competitiveness, but also as the basis for decisions affecting employees from recruitment, which is a step further away from the field of employment law, but still has an essential role, to possible dismissals (Mélyptakı, G., Riczu, Z., Máté, D., Ningrum, P. K. "The Role of the Artificial Intelligence in the Labour Law Relations in European and Asian Aspect". İnsan ve İnsan 8 (2021): 69-83). Therefore, although there are currently no regulations concerning the AI, employers must ensure the compliance with legal regulations of the employment law, which has a continuously progressive character1, by adapting it to today's conditions.

1. Next-generation Recruitment

In the first step, it is necessary to consider the effects of artificial intelligence used in the recruitment processes conducted prior to the start of the employment relationship. The recruitment process, just like the labor market, has not been spared from technological development where AI had already received a certain presence. This practice was also supported by the lockdown during the coronavirus pandemic, which contributed significantly to the digitalization of selection processes and recruitment negotiations (Kırılmaz, Selma KILIÇ., Ateş, Çağdaş., "İşe Alımlarda Yapay Zekâ Kullanımı: Kavramsal Bir Değerlendirme." Journal of Business and Trade 2, no. 1: 37-48.).

While AI presents opportunities for enhanced efficiency and objectivity in candidate selection, concerns regarding data privacy and the unintentional bias have emerged. AI systems often rely on the analysis of human data, including resumes, social media profiles, and other textbased information, to enable recruiting decisions. However, the collection and analysis of such data can inadvertently lead to discriminatory practices, undermining the principle of equal treatment enshrined in the employment law. The inherent risk lies in the potential biases within AI algorithms, which can result from past hiring decisions or biases in the data fed to the system. In the context of employment law, this poses a significant challenge as it may violate anti-discrimination regulations, including those designed to protect against gender, age, or race-based discrimination. To address these concerns and ensure ethical and lawful AI usage in recruitment, measures such as independent auditing, transparency, and advance notification are essential (Yılmaz, Alper., "Yapay Zeka ve Teknolojik Gelişmelerin İş İlişkilerine ve Çalışanın Kişisel Verilerine Etkileri", Youtube Video, 23:00. 2022. https://www.youtube.com/watch?v=GxQpN5953MI). Employers must take proactive steps to make their AI systems auditable and provide clear information to candidates about the AI's involvement in the recruitment process, thus upholding the principles of equal treatment and non-discrimination as prescribed by the law.

2. Moderation in Management and Labor Rights

Regarding the effects of AI in the workplace however, it is evident that employers are particularly utilizing the benefits of AI in fulfilling their management and supervisory rights and obligations. This is because AI, in principle, enables monitoring and surveillance of employees' activities on a scale never imagined in the past, and the collection and processing of enormous amounts of data about these activities.

An increasing number of employees, for example, are using wearable work devices that record their movements and locations, as well as measure their work pace and breaks. The data collected through these devices is easily analyzed through AI, to evaluate their productivity and suitability to perform specific tasks. Employers now can benefit from these new management models to increase their control over employees and the workplace, improve performance assessment techniques, enhance employee performance and productivity, rationalize the work organization, reduce monitoring and supervision costs, facilitate employee profiling and influence workplace behavior (De Stefano, Valerio, 'Negotiating the Algorithm': Automation, Artificial Intelligence and Labour Protection (May 16, 2018). Comparative Labor Law & Policy Journal, Vol. 41, No. 1, 2019). However, this technological practice may not only jeopardize the fundamental relationship of trust between employers and employees but can also violate the delicate balance between workplace surveillance and the protection of employees' rights, if not used in a moderate and well-balanced manner.

The employment relationship is based on mutual trust and consists of principles that the employer and the employee are obliged to fulfill. The frequency and rigidity of monitoring methods and the use of the data obtained for profiling, as well as the labeling of employees lead to a lack of trust in employees which results in a negative impact on commitment, dedication, and motivation, eventually reducing employees' well-being (Leblebici, Demet., Impact of Workplace Quality on Employee's Productivity: Case Study of a Bank in Turkey, Journal of Business, Economics & Finance, (2012), Vol 1, No:1.). For this reason, profiling and labeling as a result of surveillance activities, finding an employee unsuitable for certain job areas, deciding that the employee is incompetent based solely on the data collected by AI, and even dismissals based on the collected data are among the possible outcomes. Poor ratings or performance below the algorithm's standards can lead to the employee feeling ostracized and, in automated decisions, even suspended or dismissed from the workplace. Such cases therefore violate employees' right to work in a dignified working environment and their right to defend themselves against decisions based on automatically generated data, which in turn undermines the employment relationship and results in labor disputes. Given that, it is crucial for employers to analyze these outcomes properly and implement appropriate approaches to get the utmost value from AI-driven environment.

Employers, in this concept, should ensure the employees are properly informed and notified that the employer may monitor their correspondence, that there are legitimate reasons justifying the monitoring and accessing to their content and privacy; and that less intrusive monitoring practices can be established. At this point, it should be aimed at having a human-oriented approach, to ensure transparency and accessibility of the data collected and utilized, and to raise awareness of the approach to AI diffused in the workplace to both employees and employers through trainings. Empowering employees with the relevant skills in the context of technological and occupational changes is a central criterion for sculpting a more inclusive and fulfilling AI transition. Comprehensive, sustained and change-adaptive access to training for employees can be negotiated in collective agreements, implemented, and secured as workplace policy (OECD, "The impact of Artificial Intelligence on the labour market and the workplace: What role for social dialogue?", Thematic Brief, (2021): 3-11.).

Data privacy and protection, on the other hand, have assumed an increasingly pivotal role within the corporate landscape, underscored by the burgeoning importance of ensuring stringent compliance with legal frameworks during the processing of employee data. It is imperative to recognize that employees hold the intrinsic right to access a comprehensive understanding of how their data is being managed, the precise way of its processing, the duration of retention, and the specific applications to which it is endured (Özparlak, Başak Ozan. "Legal Implications of Human and Robot Interaction at Workplace." DTTS2018 Digital Transformation and Smart Systems Conference Book, (2018).). This becomes especially critical within the paradigm of AI where the inherent opaqueness of AI decision-making mechanisms amplifies the significance of preserving employees' rights. Consequently, employers are entrusted with the onus of maintaining unwavering transparency and clarity in their data processing practices. A data protection impact assessment is particularly necessary in the case of a systematic and comprehensive assessment of personal aspects concerning employees based on automated processing, including profiling, and based on decisions that have legal effects concerning employees.

II. FINAL WORDS

The positive or negative impact of AI will largely depend on how it is implemented at the workplace level, what the role of regulation will be in managing the diffusion of AI, and how employers adapt their workplaces to keep up with new developments. The seamless coexistence of data privacy, protection of employee rights, non-discrimination, and the complexities inherent in AI-driven practices requires a complex framework in which informed consent, data governance, and ethical deployment of AI are rigorously intertwined. Transparency, awareness, and human orientation in this complex area serves not only to promote compliance with legal obligations, but also to foster an atmosphere characterized by mutual trust and mutual respect between employers and their employees. Employers need to empower their employees with a comprehensive awareness of which aspects of their data are subject to AI-driven scrutiny and a thorough understanding of the mechanisms by which AI performs the analysis. As the data landscape continues to evolve, data privacy and protection will undoubtedly remain a fundamental component of the enterprise landscape, shaping the parameters of conscientious, ethically solid and legally compliant data governance protocols.

Footnote

1. Yargıtay 9. Hukuk Dairesi E. 2017/6626 K. 2017/17351 T. 2.11.2017

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

See More Popular Content From

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More