Addressing the challenge to workers’ rights from AI surveillance in the workplace

The use of AI in the workplace is growing fast to increase production and create better, more versatile products, but equally, AI systems are increasingly used for the surveillance of workers. Unions need to act, and existing legislation could help until stronger governance comes into force.

The use of AI in the workplace is growing fast to increase production and create better, more versatile products, but equally, AI systems are increasingly used for the surveillance of workers.

And while the stated intent is often a wish to improve productivity, in reality, this use can often have other wide-ranging effects on workers’ rights and the power balance between management and the workers. This development is happening across the world, not least in the Nordics.

For the unions, this creates a challenge, as the lack of transparency in the use of AI monitoring systems can be abused to undermine the workers’ rights and breach the collective bargaining agreements that the unions safeguard.

The risk AI systems pose to privacy and workers’ rights means that trade unions must pursue new approaches to protect the employees’ working conditions and rights.

At the ANE AI workshops in 2022, we welcomed the internationally recognised workers’ digital rights experts: Andrew Pakes from Prospect and Dr Christina Colclough from The Why Not Lab to present to the representatives from our member organisations.

In UniGlobal’s report Challenging the New Normal – The Future of Work is Human you can read more about their views and recommendations concerning the use of AI in the workplace.

This was the main conclusion from the workshop ANE organised for our member organisations on AI-related activities last year.

And the immediate need for the unions to react has only become more urgent in the Nordics, where terms like “Tattleware” and “Bossware” have entered the news cycle to describe the intrusion from surveillance software in the workplace. The new reality is that employees are rarely informed about the use of the software, and many employers are not certain about the safety of the sensitive data they have collected. [i]

Using these systems creates uncertainty for the employees’ privacy, and the unions are concerned about the lack of transparency in how the data is collected, managed, and stored. A recent Danish survey by IDA (Danish Society of Engineers) and other social partners shows that 1 in 5 employees who have experienced data collection in their workplace has felt under surveillance. The survey also showed that more than half of the respondents were worried that the data collection would harm the trust and relationship between managers and employees.[ii]

Some examples of how the ANE member organisations have been working on securing workers’ rights concerning AI surveillance in the workplace:

IDA (Denmark) has created a particular subsection on surveillance in the workplace on their website with podcasts, articles, and tools to inform about workers’ rights concerning surveillance.

NITO (Norway) has worked with two other unions and Digital Norway to create a free digital course and a podcast series on the consequences, challenges, and opportunities of using AI in the workplace.

Surveillance in the workplace can also have severe consequences for employees’ health and mental well-being. For example, in an international survey conducted by UNI Global among Amazon employees worldwide, the feeling of excessive use of employee monitoring caused more than 50 percent of the surveyed to answer that they agreed it had a negative impact on their health. Equally, more than 57 percent agreed or strongly agreed that the monitoring had a negative impact on their mental health.  

The rapid developments in AI systems’ use (and potential misuse) necessitate a robust legal and governance framework, and the EU proposal for an Artificial Intelligence Act, expected to be adopted by the end of 2023 and come into force two years later, is a big step towards addressing some of the challenges. And while welcoming this first-ever legal proposal on AI, our ANE statement expressed the urgent need to strengthen the governance framework for the legislation with collective mechanisms of control and oversight. The voices of employees and social partners must be included in any decision-making and scrutiny of the AI systems impacting workers’ privacy and working conditions.

However, while the EU AI Act is still under negotiation, trade unions must and can rely on existing legislation to protect workers’ rights. The GDPR already provides legal opportunities for employees and unions to address workplace surveillance issues. The GDPR contains several rights that unions can use to prevent exploitative data use and hold management accountable for the digital systems employers are using. This was a great reminder by Dr Christina Colclough (The Why Not Lab) for the union representatives at our internal ANE workshop and below you can find links and information about the key paragraphs for using the GDPR as suggested by Dr. Colclough.

Undoubtedly, the rapidly expanding use of AI systems for workers’ surveillance should be a focal point in all negotiations on collective agreements, and unions must be well prepared for this. And until the EU AI Act is enacted, the GDPR will remain the cornerstone of protecting workers from breaches of their workplace rights concerning AI surveillance. 

However, before AI systems are implemented in our workplaces in any form that handles personal data, the data ethical dilemmas must be considered and resolved. Unions must demand transparency on how the systems use the data and how workers’ rights are safeguarded. These are key challenges that can only be resolved through strong governance and close cooperation between decision-makers, employer organisations, and unions.

GDPR Articles you should be using

Source: Dr. Christina Colclough, The Why Not Lab

Article 13 & 14: “information to be provided

  • The collection of data
  • How the company plans to use the data
  • The reason why they are collecting the data
  • Can the purpose of collecting the data be achieved without collecting the data?
  • How long will the data be stored to fulfill the purpose?
  • Is the data periodically reviewed in relation to the above 5 points and deleted if required?

Article 5(c): “Principles of Data Processing

  • Personal data shall be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);

Article 15: “Rights of Access (incl. data subject access request”

Article 22: “Automated decision making”

  • The right to not be subject to this

Article 35: “Data Protection Impact Assessments (DPIA)

  • Must be carried out if processing is “high risk” – all processing of worker’s data is!
  • Article 29 Working Party Opinion: employers should consult with a “representative sample of employees” when conducting these. Do they?

Informed consent is not a legal basis for processing data at work

Article 80: “Representation”

  • in effect giving unions the right to represent their members in claiming their GDPR rights.

Article 88: “Processing in the context of employment”

  • Member States may, by law or by collective agreements, provide for more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees’ personal data in the employment context