On August 28, 2024, the Federal Council adopted the dispatch on the revision of the Federal Personnel Act (FPA):
The FPA regulates personnel law for the Federal Administration, the Parliamentary Services, the Swiss Federal Railways, the decentralized administrative units and the federal courts, subject to special statutory provisions and other bodies, but not for organizations and persons under public or private law outside the Federal Administration that are entrusted with administrative tasks (Art. 2 FPA).
Profiling
One aim of the partial revision is to create a statutory Basis for profiling (Art. 27 rev-BPG). Profiling is required for the search for potential employees in social media. The message:
As social media use algorithms to compare jobseekers’ search queries with job offers, this form of recruitment falls under the concept of profiling, which was introduced into the legal system when the new Data Protection Act came into force on September 1, 2023. According to the Data Protection Act, federal bodies require a legal basis to be able to carry out profiling. This bill aims to create such a basis so that the federal authorities can continue to use social media for recruitment purposes. This regulates which data may be used for what purpose.
Profiling exists because federal bodies whose employment relationships are subject to the BPG (if they do so) are subject to profiling at the Active search for applicants are also allowed to carry out profiling:
By using statistical and mathematical methods, especially algorithms, new information about individuals can be generated from a large amount of data that may not be very meaningful on its own. Employers are also increasingly using new recruitment channels and technologies to better reach certain age and professional groups. In particular, in the social media such as LinkedIn and Xing an active recruitmentknown as active sourcing. Social media users decide whether to create a profile on social media and what data they disclose about themselves. With the Search and evaluation options for social media various user data is linked with the aim of suggesting suitable candidates to employers for a specific position and presenting users with suitable job offers. Employers enter the requirements that the potential candidate must fulfill for a specific position on social media. The methods and algorithms used in social media allow employers to actively search for users who best meet the specified requirements. Due to the automated approach, active recruitment can correspond to profiling or high-risk profiling in accordance with the FADP.
It is interesting to note that the Federal Council apparently assumes that such profiling is attributable to the federal body and not or not only to the provider of the platform, albeit without explicitly addressing this issue. However, the use of the platform for the automated “evaluation” of possible suitability may indeed constitute profiling under certain circumstances.
At Assessments Furthermore, high-risk profiling may also be present:
The assessment serves as support in personnel selection. There are different types of assessment: the group assessment (assessment center), the individual assessment, the selection assessment, the development assessment, the location assessment and the remote assessment. The selection assessment provides employers with valuable information that helps them to find out which person from a narrow group of applicants is best suited for a specific position. This type of assessment is used in particular when recruiting people for senior management positions. The assessments are usually carried out by psychologists and are based on the following criteria also machine-controlled tests for the evaluation of certain characteristics used. An assessment usually ends with a report for the employer. This report corresponds to a compilation of data from which a Picture of essential aspects or partial aspects of the applicant. The assessment is partially automated. It can be assumed that the automation of the assessment will increase in the future. Due to the method (automated assessment of certain aspects) and the result (personality profile), it can be assumed that assessments constitute high-risk profiling under the FADP can.
The Federal Council agrees with the prevailing view that profiling constitutes high-risk profiling if its result corresponds to a personality profile under the old law and not if the input data – the data basis for profiling – taken together is a personality profile. This is important because many data evaluations are based on a broad basis (e.g. transaction data) but lead to a narrow result (e.g. an affinity). These cases do not constitute high-risk profiling because it is the output and not the input that matters – this is the consequence of the position that the Federal Council has apparently adopted.
However, the legal basis should not only cover these cases, but also others, including with regard to artificial intelligence:
Both applicants and employees are expected to take advantage of the opportunities offered by digitalization and to take technological developments into account. Standard applications should increasingly be used in the federal administration. It can be assumed that these applications will be used in the future. changing algorithms, artificial intelligence and new technologies be used. Employers will therefore not be able to avoid the new technologies. For this reason, a legal basis for profiling and high-risk profiling should be added to the area of personnel recruitment. also in other areas of human resources be created. This is for the targeted promotion and long-term retention of employees as well as for personnel development
This raises the interesting question of whether the use of an LLM can constitute high-risk profiling if the output corresponds to a personality profile. This is likely to be the case if the input contains personal data or if the LLM contains and uses personal data. Whether this can be the case is a contentious issuebut this cannot be ruled out a priori.
Further adjustments
Further adjustments relate to the Whistleblowing. Art. 22a rev-BPG focuses on clarifications and terminological changes. However, the principle of public access is now excluded for “documents that substantiate a report under this provision, are submitted with it or were created on the basis of a report” in order to protect confidence in the institution of whistleblowing. The FDPIC had spoken out against this exclusion.
Further changes concern the Disciplinary investigation and Digitization topics:
Finally, the revision will be used as an opportunity to make a number of adjustments to clarify and drive forward the digitalization of HR. On the one hand, these amendments concern the Whistleblower article: Confidential federal offices are to be exempted from the obligation to report crimes or offenses if they report the suspicion in the course of their activities.
draw. Secondly, the amendments relate to employment contracts. The initial aim here is to bring them closer to employment contracts in the private sector by relaxing the formal requirements. For example, the signing of an employment contract should also Advanced electronic signatures can be used. In addition, it should be possible under federal personnel law to terminate fixed-term contracts in the same way as under private law, provided this has been contractually agreed. Finally, the maximum compensation awarded by the courts in the event of unfair dismissal should now be a maximum of eight months’ salary.