Pub Date : 2023-05-03DOI: 10.1177/20319525231167477
Zoe Adams, J. Wenckebach
This article sets out the case for co-determination in the context of work, with a particular emphasis on why this is mandated in relation to algorithmically managed work and workplaces in particular. Having set out the theoretical case for collective regulation of algorithmic management that includes extensive rights of co-determination, focusing on the power relations implied by algorithmic management for this purpose, the article goes on to explore the current state of collective regulation of algorithmic management in the UK and in Germany. From here, it explores existing EU law mechanisms relating to algorithmic management, highlighting their limits and potential, and identifying how, and in what ways, the blueprint outlined by Adams-Prassl et al in this Special Issue might be further elaborated and improved. The article then presents certain proposals for how to establish conditions conducive to the introduction of co-determination in the EU, both generally and in relation to algorithmic technologies more specifically, while engaging critically with the potential and the limitations of legal, top-down—as opposed to bottom-up—mechanisms to achieve this end.
{"title":"Collective regulation of algorithmic management","authors":"Zoe Adams, J. Wenckebach","doi":"10.1177/20319525231167477","DOIUrl":"https://doi.org/10.1177/20319525231167477","url":null,"abstract":"This article sets out the case for co-determination in the context of work, with a particular emphasis on why this is mandated in relation to algorithmically managed work and workplaces in particular. Having set out the theoretical case for collective regulation of algorithmic management that includes extensive rights of co-determination, focusing on the power relations implied by algorithmic management for this purpose, the article goes on to explore the current state of collective regulation of algorithmic management in the UK and in Germany. From here, it explores existing EU law mechanisms relating to algorithmic management, highlighting their limits and potential, and identifying how, and in what ways, the blueprint outlined by Adams-Prassl et al in this Special Issue might be further elaborated and improved. The article then presents certain proposals for how to establish conditions conducive to the introduction of co-determination in the EU, both generally and in relation to algorithmic technologies more specifically, while engaging critically with the potential and the limitations of legal, top-down—as opposed to bottom-up—mechanisms to achieve this end.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"211 - 229"},"PeriodicalIF":0.7,"publicationDate":"2023-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41516323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-26DOI: 10.1177/20319525231167982
Antonio Aloisi, V. De Stefano
In this article, we provide an overview of efforts to regulate the various phases of the artificial intelligence (AI) life cycle. In doing so, we examine whether—and, if so, to what extent—highly fragmented legal frameworks are able to provide safeguards capable of preventing the dangers that stem from AI- and algorithm-driven organisational practices. We critically analyse related developments at the European Union (EU) level, namely the General Data Protection Regulation, the draft AI Regulation, and the proposal for a Directive on improving working conditions in platform work. We also consider bills and regulations proposed or adopted in the United States and Canada via a transatlantic comparative approach, underlining analogies and variations between EU and North American attitudes towards the risk assessment and management of AI systems. We aim to answer the following questions: Is the widely adopted risk-based approach fit for purpose? Is it consistent with the actual enforcement of fundamental rights at work, such as privacy, human dignity, equality and collective rights? To answer these questions, in section 2 we unpack the various, often ambiguous, facets of the notion(s) of ‘risk’—that is, the common denominator with the EU and North American legal instruments. Here, we determine that a scalable, decentralised framework is not appropriate for ensuring the enforcement of constitutional labour-related rights. In addition to presenting the key provisions of existing schemes in the EU and North America, in section 3 we disentangle the consistencies and tensions between the frameworks that regulate AI and constrain how it must be handled in specific contexts, such as work environments and platform-orchestrated arrangements. Paradoxically, the frenzied race to regulate AI-driven decision-making could exacerbate the current legal uncertainty and pave the way for regulatory arbitrage. Such a scenario would slow technological innovation and egregiously undermine labour rights. Thus, in section 4 we advocate for the adoption of a dedicated legal instrument at the supranational level to govern technologies that manage people in workplaces. Given the high stakes involved, we conclude by stressing the salience of a multi-stakeholder AI governance framework.
{"title":"Between risk mitigation and labour rights enforcement: Assessing the transatlantic race to govern AI-driven decision-making through a comparative lens","authors":"Antonio Aloisi, V. De Stefano","doi":"10.1177/20319525231167982","DOIUrl":"https://doi.org/10.1177/20319525231167982","url":null,"abstract":"In this article, we provide an overview of efforts to regulate the various phases of the artificial intelligence (AI) life cycle. In doing so, we examine whether—and, if so, to what extent—highly fragmented legal frameworks are able to provide safeguards capable of preventing the dangers that stem from AI- and algorithm-driven organisational practices. We critically analyse related developments at the European Union (EU) level, namely the General Data Protection Regulation, the draft AI Regulation, and the proposal for a Directive on improving working conditions in platform work. We also consider bills and regulations proposed or adopted in the United States and Canada via a transatlantic comparative approach, underlining analogies and variations between EU and North American attitudes towards the risk assessment and management of AI systems. We aim to answer the following questions: Is the widely adopted risk-based approach fit for purpose? Is it consistent with the actual enforcement of fundamental rights at work, such as privacy, human dignity, equality and collective rights? To answer these questions, in section 2 we unpack the various, often ambiguous, facets of the notion(s) of ‘risk’—that is, the common denominator with the EU and North American legal instruments. Here, we determine that a scalable, decentralised framework is not appropriate for ensuring the enforcement of constitutional labour-related rights. In addition to presenting the key provisions of existing schemes in the EU and North America, in section 3 we disentangle the consistencies and tensions between the frameworks that regulate AI and constrain how it must be handled in specific contexts, such as work environments and platform-orchestrated arrangements. Paradoxically, the frenzied race to regulate AI-driven decision-making could exacerbate the current legal uncertainty and pave the way for regulatory arbitrage. Such a scenario would slow technological innovation and egregiously undermine labour rights. Thus, in section 4 we advocate for the adoption of a dedicated legal instrument at the supranational level to govern technologies that manage people in workplaces. Given the high stakes involved, we conclude by stressing the salience of a multi-stakeholder AI governance framework.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"283 - 307"},"PeriodicalIF":0.7,"publicationDate":"2023-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43065782","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-24DOI: 10.1177/20319525231167476
Aude Cefaliello, Phoebe V. Moore, R. Donoghue
The increasing deployment of algorithmic management in the workplace poses significant occupational safety and health risks for workers. In this article, we argue that existing and proposed EU regulatory frameworks are inadequate to address these risks, especially psychosocial risks, created or exacerbated by algorithmic management. While existing and proposed regulatory frameworks have significant implications for employers’ obligations to mitigate these risks, we identify several psychosocial risks created or exacerbated by algorithmic management and show how the current and proposed regulatory frameworks fall short of adequately addressing these risks. We observe that these frameworks, based largely in the ‘safety by design’ tradition, focus on the design phase of the technology life cycle. This focus does not adequately address risks that arise in the use or deployment stage of algorithmic management. There is therefore a need for a stand-alone piece of legislation at the EU level on algorithmic management. To address these shortcomings, we outline suggestions for provisions necessary for safe and healthy digitally managed work.
{"title":"Making algorithmic management safe and healthy for workers: Addressing psychosocial risks in new legal provisions","authors":"Aude Cefaliello, Phoebe V. Moore, R. Donoghue","doi":"10.1177/20319525231167476","DOIUrl":"https://doi.org/10.1177/20319525231167476","url":null,"abstract":"The increasing deployment of algorithmic management in the workplace poses significant occupational safety and health risks for workers. In this article, we argue that existing and proposed EU regulatory frameworks are inadequate to address these risks, especially psychosocial risks, created or exacerbated by algorithmic management. While existing and proposed regulatory frameworks have significant implications for employers’ obligations to mitigate these risks, we identify several psychosocial risks created or exacerbated by algorithmic management and show how the current and proposed regulatory frameworks fall short of adequately addressing these risks. We observe that these frameworks, based largely in the ‘safety by design’ tradition, focus on the design phase of the technology life cycle. This focus does not adequately address risks that arise in the use or deployment stage of algorithmic management. There is therefore a need for a stand-alone piece of legislation at the EU level on algorithmic management. To address these shortcomings, we outline suggestions for provisions necessary for safe and healthy digitally managed work.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"192 - 210"},"PeriodicalIF":0.7,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43572813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-24DOI: 10.1177/20319525231167983
Michael Veale, M. ‘. Silberman, Reuben Binns
The European Commission proposed a Directive on Platform Work at the end of 2021. While much attention has been placed on its effort to address misclassification of the employed as self-employed, it also contains ambitious provisions for the regulation of the algorithmic management prevalent on these platforms. Overall, these provisions are well-drafted, yet they require extra scrutiny in light of the fierce lobbying and resistance they will likely encounter in the legislative process, in implementation and in enforcement. In this article, we place the proposal in its sociotechnical context, drawing upon wide cross-disciplinary scholarship to identify a range of tensions, potential misinterpretations, and perversions that should be pre-empted and guarded against at the earliest possible stage. These include improvements to ex ante and ex post algorithmic transparency; identifying and strengthening the standard against which human reviewers of algorithmic decisions review; anticipating challenges of representation and organising in complex platform contexts; creating realistic ambitions for digital worker communication channels; and accountably monitoring and evaluating impacts on workers while limiting data collection. We encourage legislators and regulators at both European and national levels to act to fortify these provisions in the negotiation of the Directive, its potential transposition, and in its enforcement.
{"title":"Fortifying the algorithmic management provisions in the proposed Platform Work Directive","authors":"Michael Veale, M. ‘. Silberman, Reuben Binns","doi":"10.1177/20319525231167983","DOIUrl":"https://doi.org/10.1177/20319525231167983","url":null,"abstract":"The European Commission proposed a Directive on Platform Work at the end of 2021. While much attention has been placed on its effort to address misclassification of the employed as self-employed, it also contains ambitious provisions for the regulation of the algorithmic management prevalent on these platforms. Overall, these provisions are well-drafted, yet they require extra scrutiny in light of the fierce lobbying and resistance they will likely encounter in the legislative process, in implementation and in enforcement. In this article, we place the proposal in its sociotechnical context, drawing upon wide cross-disciplinary scholarship to identify a range of tensions, potential misinterpretations, and perversions that should be pre-empted and guarded against at the earliest possible stage. These include improvements to ex ante and ex post algorithmic transparency; identifying and strengthening the standard against which human reviewers of algorithmic decisions review; anticipating challenges of representation and organising in complex platform contexts; creating realistic ambitions for digital worker communication channels; and accountably monitoring and evaluating impacts on workers while limiting data collection. We encourage legislators and regulators at both European and national levels to act to fortify these provisions in the negotiation of the Directive, its potential transposition, and in its enforcement.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"308 - 332"},"PeriodicalIF":0.7,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43150717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-20DOI: 10.1177/20319525231167299
Jeremias Adams-Prassl, Halefom H. Abraha, Aislinn Kelly-Lyth, M. ‘. Silberman, Sangh Rakshita
The promise—and perils—of algorithmic management are increasingly recognised in the literature. How should regulators respond to the automation of the full range of traditional employer functions, from hiring workers through to firing them? This article identifies two key regulatory gaps—an exacerbation of privacy harms and information asymmetries, and a loss of human agency—and sets out a series of policy options designed to address these novel harms. Redlines (prohibitions), purpose limitations, and individual as well as collective information rights are designed to protect against harmfully invasive data practices; provisions for human involvement ‘in the loop’ (banning fully automated terminations), ‘after the loop’ (a right to meaningful review), ‘before the loop’ (information and consultation rights) and ‘above the loop’ (impact assessments) aim to restore human agency in the deployment and governance of algorithmic management systems.
{"title":"Regulating algorithmic management: A blueprint","authors":"Jeremias Adams-Prassl, Halefom H. Abraha, Aislinn Kelly-Lyth, M. ‘. Silberman, Sangh Rakshita","doi":"10.1177/20319525231167299","DOIUrl":"https://doi.org/10.1177/20319525231167299","url":null,"abstract":"The promise—and perils—of algorithmic management are increasingly recognised in the literature. How should regulators respond to the automation of the full range of traditional employer functions, from hiring workers through to firing them? This article identifies two key regulatory gaps—an exacerbation of privacy harms and information asymmetries, and a loss of human agency—and sets out a series of policy options designed to address these novel harms. Redlines (prohibitions), purpose limitations, and individual as well as collective information rights are designed to protect against harmfully invasive data practices; provisions for human involvement ‘in the loop’ (banning fully automated terminations), ‘after the loop’ (a right to meaningful review), ‘before the loop’ (information and consultation rights) and ‘above the loop’ (impact assessments) aim to restore human agency in the deployment and governance of algorithmic management systems.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"124 - 151"},"PeriodicalIF":0.7,"publicationDate":"2023-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46243832","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-17DOI: 10.1177/20319525231167298
Jeremias Adams-Prassl, Halefom H. Abraha, Aislinn Kelly-Lyth, Sangh Rakshita, M. ‘. Silberman
This special issue of the European Labour Law Journal, edited by Jeremias Adams-Prassl, Halefom Abraha, Aislinn Kelly-Lyth, Sangh Rakshita and Michael ‘Six’ Silberman, explores the regulation of Algorithmic Management in the European Union and beyond. In our guest editorial, we set out the background to the project, introduce the reader to the key themes and highlights of the papers to follow, and acknowledge the support that the project has enjoyed.
本期《欧洲劳动法杂志》特刊由Jeremias Adams-Prassl、Halefom Abraha、aislin Kelly-Lyth、Sangh Rakshita和Michael ' Six ' Silberman编辑，探讨了欧盟及其他地区的算法管理监管。在我们的客座社论中，我们阐述了项目的背景，向读者介绍了论文的关键主题和亮点，并对项目所获得的支持表示感谢。
{"title":"Guest Editorial: Regulating algorithmic management","authors":"Jeremias Adams-Prassl, Halefom H. Abraha, Aislinn Kelly-Lyth, Sangh Rakshita, M. ‘. Silberman","doi":"10.1177/20319525231167298","DOIUrl":"https://doi.org/10.1177/20319525231167298","url":null,"abstract":"This special issue of the European Labour Law Journal, edited by Jeremias Adams-Prassl, Halefom Abraha, Aislinn Kelly-Lyth, Sangh Rakshita and Michael ‘Six’ Silberman, explores the regulation of Algorithmic Management in the European Union and beyond. In our guest editorial, we set out the background to the project, introduce the reader to the key themes and highlights of the papers to follow, and acknowledge the support that the project has enjoyed.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"117 - 123"},"PeriodicalIF":0.7,"publicationDate":"2023-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41532958","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-16DOI: 10.1177/20319525231165847
Frea De Keyzer
For many athletes, sport will always be seen as their greatest passion, but in addition, for some, sport has also become an economic activity, an activity through which one can earn income. Both professional athletes and (so-called) amateur athletes may conclude contracts with their clubs or federations, which also determine the (possible) variable and/or fixed remuneration they obtain in return for their performances. As sport can be seen as a form of employment, the key question to be asked is whether these contracts should be seen as employment contracts and, consequently, whether these athletes are all employees. This article wishes to contribute to the search for answers to this question. The research is limited to the Belgian legal system but has the ambition to feed a broader discussion. Starting from Belgian labour law, the article examines which conditions must be met in order to speak of an employment contract (labour, remuneration and authority). It can be concluded that many (paid) athletes, especially football players, will meet the legal conditions to be considered employees. This contribution focuses on team sports, with football as a typical example, because in this context exercise of authority is more obvious and discussions on the relationship with labour law are most acute. Furthermore, this article examines the specific legislation and jurisprudence concerning athletes. In the Belgian legal order, sports professionals constitute a separate category to which the legislator has given special status by adopting a lex specialis to the general Employment Contracts Act. Nevertheless, there are still discussions about the social protection these sports professionals enjoy compared to regular employees and non-professional athletes. Beyond that, the status of athletes who do not reach the remuneration threshold to fall within the scope of the Sports Professionals Act, remains unclear. Recently, a dichotomy was created within paid amateur football, showing a desire to keep some athletes out of the scope of labour law. However, labour law is mandatory in nature, so the question is whether this dichotomy can continue to exist. This article will make it clear that the relationship between labour law and sport remains a difficult one.
{"title":"The employment status of the sportsperson: The Belgian case","authors":"Frea De Keyzer","doi":"10.1177/20319525231165847","DOIUrl":"https://doi.org/10.1177/20319525231165847","url":null,"abstract":"For many athletes, sport will always be seen as their greatest passion, but in addition, for some, sport has also become an economic activity, an activity through which one can earn income. Both professional athletes and (so-called) amateur athletes may conclude contracts with their clubs or federations, which also determine the (possible) variable and/or fixed remuneration they obtain in return for their performances. As sport can be seen as a form of employment, the key question to be asked is whether these contracts should be seen as employment contracts and, consequently, whether these athletes are all employees. This article wishes to contribute to the search for answers to this question. The research is limited to the Belgian legal system but has the ambition to feed a broader discussion. Starting from Belgian labour law, the article examines which conditions must be met in order to speak of an employment contract (labour, remuneration and authority). It can be concluded that many (paid) athletes, especially football players, will meet the legal conditions to be considered employees. This contribution focuses on team sports, with football as a typical example, because in this context exercise of authority is more obvious and discussions on the relationship with labour law are most acute. Furthermore, this article examines the specific legislation and jurisprudence concerning athletes. In the Belgian legal order, sports professionals constitute a separate category to which the legislator has given special status by adopting a lex specialis to the general Employment Contracts Act. Nevertheless, there are still discussions about the social protection these sports professionals enjoy compared to regular employees and non-professional athletes. Beyond that, the status of athletes who do not reach the remuneration threshold to fall within the scope of the Sports Professionals Act, remains unclear. Recently, a dichotomy was created within paid amateur football, showing a desire to keep some athletes out of the scope of labour law. However, labour law is mandatory in nature, so the question is whether this dichotomy can continue to exist. This article will make it clear that the relationship between labour law and sport remains a difficult one.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"438 - 447"},"PeriodicalIF":0.7,"publicationDate":"2023-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44317566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-02DOI: 10.1177/20319525231167300
Aislinn Kelly-Lyth
The potential for algorithms to discriminate is now well-documented, and algorithmic management tools are no exception. Scholars have been quick to point to gaps in the equality law framework, but existing European law is remarkably robust. Where gaps do exist, they largely predate algorithmic decision-making. Careful judicial reasoning can resolve what appear to be novel legal issues; and policymakers should seek to reinforce European equality law, rather than reform it. This article disentangles some of the knottiest questions on the application of the prohibition on direct and indirect discrimination to algorithmic management, from how the law should deal with arguments that algorithms are ‘more accurate’ or ‘less biased’ than human decision-makers, to the attribution of liability in the employment context. By identifying possible routes for judicial resolution, the article demonstrates the adaptable nature of existing legal obligations. The duty to make reasonable accommodations in the disability context is also examined, and options for combining top-level and individualised adjustments are explored. The article concludes by turning to enforceability. Algorithmic discrimination gives rise to a concerning paradox: on the one hand, automating previously human decision-making processes can render discriminatory criteria more traceable and outcomes more quantifiable. On the other hand, algorithmic decision-making processes are rarely transparent, and scholars consistently point to algorithmic opacity as the key barrier to litigation and enforcement action. Judicial and legislative routes to greater transparency are explored.
{"title":"Algorithmic discrimination at work","authors":"Aislinn Kelly-Lyth","doi":"10.1177/20319525231167300","DOIUrl":"https://doi.org/10.1177/20319525231167300","url":null,"abstract":"The potential for algorithms to discriminate is now well-documented, and algorithmic management tools are no exception. Scholars have been quick to point to gaps in the equality law framework, but existing European law is remarkably robust. Where gaps do exist, they largely predate algorithmic decision-making. Careful judicial reasoning can resolve what appear to be novel legal issues; and policymakers should seek to reinforce European equality law, rather than reform it. This article disentangles some of the knottiest questions on the application of the prohibition on direct and indirect discrimination to algorithmic management, from how the law should deal with arguments that algorithms are ‘more accurate’ or ‘less biased’ than human decision-makers, to the attribution of liability in the employment context. By identifying possible routes for judicial resolution, the article demonstrates the adaptable nature of existing legal obligations. The duty to make reasonable accommodations in the disability context is also examined, and options for combining top-level and individualised adjustments are explored. The article concludes by turning to enforceability. Algorithmic discrimination gives rise to a concerning paradox: on the one hand, automating previously human decision-making processes can render discriminatory criteria more traceable and outcomes more quantifiable. On the other hand, algorithmic decision-making processes are rarely transparent, and scholars consistently point to algorithmic opacity as the key barrier to litigation and enforcement action. Judicial and legislative routes to greater transparency are explored.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"152 - 171"},"PeriodicalIF":0.7,"publicationDate":"2023-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66119633","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-02DOI: 10.1177/20319525231167317
Halefom H. Abraha
The regulation of algorithmic management falls under the purview of multiple legal domains including but not limited to labour law, non-discrimination law and data protection law. While labour law does not have explicit provisions to adequately protect workers from algorithmic harms, existing non-discrimination and data protection laws can address some aspects of these harms. This article examines the extent to which the GDPR offers the necessary tools to protect workers from harm stemming from algorithmic management. It argues that while the provisions tailored to automated decision-making (ADM) and the rest of the GDPR provide workers with some limited protections, significant gaps remain. It then suggests some policy options on how the existing protections under the GDPR can be further complemented, particularised, and strengthened through a combination of legislative and non-legislative measures.
{"title":"Regulating algorithmic employment decisions through data protection law","authors":"Halefom H. Abraha","doi":"10.1177/20319525231167317","DOIUrl":"https://doi.org/10.1177/20319525231167317","url":null,"abstract":"The regulation of algorithmic management falls under the purview of multiple legal domains including but not limited to labour law, non-discrimination law and data protection law. While labour law does not have explicit provisions to adequately protect workers from algorithmic harms, existing non-discrimination and data protection laws can address some aspects of these harms. This article examines the extent to which the GDPR offers the necessary tools to protect workers from harm stemming from algorithmic management. It argues that while the provisions tailored to automated decision-making (ADM) and the rest of the GDPR provide workers with some limited protections, significant gaps remain. It then suggests some policy options on how the existing protections under the GDPR can be further complemented, particularised, and strengthened through a combination of legislative and non-legislative measures.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"172 - 191"},"PeriodicalIF":0.7,"publicationDate":"2023-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42508777","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-30DOI: 10.1177/20319525231165851
S. Danaj, Mojca Vah Jevšnik, Marcin Kiełbasa, Monika Szaraniec
Drawing on research conducted in the framework of the POSTING.STAT project for Slovenia and Poland, this article contributes to the literature on the posting of third-country nationals (TCNs) within the European Union from the perspective of the sending countries. Our research questions are: What are the current posting trends and patterns of mobility of TCNs from Poland and Slovenia? How do national legal and policy instruments in Poland and Slovenia shape the recruitment of TCNs and facilitate the posting of these TCNs to other Member States? We find that the recent growth in posting from both countries is driven by the substantial increase in the number of posted TCNs, which might signal at least their complementary role, if not the replacement, of posted nationals with TCNs to sustain the established business models of posting from Slovenia and Poland. We observe two trends. Firstly, national legal and policy instruments encourage labour migration from certain third countries with which Slovenia and Poland have historical ties and geographical proximity, which are then embedded in their national labour markets. Secondly, both countries remain source countries for the posting of workers, a pattern they have been able to sustain by increasing the use of TCNs for posting. Hence, despite a growing share of TCNs involved in posting, most TCNs continue to be based in Slovenia and Poland, suggesting posting or onward migration are not necessarily the main reason these workers go to Slovenia and Poland in the first place. Yet, the increase in numbers of posted TCNs observed in both countries, regardless of stricter regulations and the Covid-19 pandemic, suggests that posting in labour-intensive sectors such as road freight transport and construction is increasingly becoming a segmented labour market. We argue that the posting of TCNs might grow into an important intra-EU mobility channel, with the caveat that while certain EU countries will insist on restricting direct access to their national labour market for TCNs, other EU countries, especially those that so far have acted as labour or services suppliers, will lend themselves as gate-openers for the intra-EU mobility of TCNs.
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