Submitted text
The Federal Council is instructed to strengthen the participation rights of employees in the use of artificial intelligence (AI) and algorithmic systems in the workplace at a statutory level if these systems are used for Recommendations, forecasts, decisions etc., which concern employees or Employee data use. In particular, the amendments are intended to strengthen collective co-determination. To this end, the right to have a say is to be expanded, information rights strengthened, collective rights of action created and sanction options examined. The aim is to minimize risks that arise for employees and to ensure that employees also benefit.
Justification
As new studies show, many employees in Switzerland fear for their jobs. This fear is often accompanied by uncertainty about which technologies are used in the workplace and what their data is used for. A lack of transparency and uncertainty are not conducive to a good working relationship and diminish employees’ trust in the systems used. A lack of consultation can lead to injustice, as the consequences for various affected parties are not fully taken into account, as well as to negative effects on the health of employees – especially in the case of automated monitoring.
A new Legal opinion of the University of St. Gallen shows the need for action: The right to participation has various loopholes and does not adequately protect the rights of employees. It is therefore important to strengthen participation rights. The law must define clear obligations for employers as to how employees are to be involved and how information rights are to be strengthened. Employees should have access to external specialists. Health-related systems should also be subject to even stricter obligations to cooperate. Another problem is that both the data used and the effects on employees are often collective. This is why collective co-determination options and collective rights of action are needed. Sanctions could be imposed on employers who violate the participation requirements.
Statement of the Federal Council of 14.2.24
The Federal Council is aware that the increasing use of algorithmic systems in the workplace is associated with uncertainties. The Participation Act (SR 822.14) provides for a general right to information in this regard (Art. 9), which is supplemented by special rights of co-determination, namely in the area of occupational health (Art. 10 para. 1 let. a in conjunction with Art. 48 para. 1 let. a of the Labor Act [ArG]). In addition to the right to information and the right to have a say, there are health protection regulations that prohibit the use of monitoring or control systems that are intended to monitor the behavior of employees in the workplace (Art. 26 para. 1 of Ordinance 3 to the Employment Act [ArGV 3]). The Gender Equality Act (GlG, SR 151.1), which prohibits discrimination in employment relationships under private and public law, also applies in cases where the employer uses artificial intelligence (AI). For its part, the Data Protection Act (DPA, SR 235.1) guarantees comprehensive protection of employees’ personal data. With the revision of the FADP, the obligation to provide information was strengthened, particularly in the case of automated individual decisions, and the possibility of involving a natural person was created. Furthermore, Art. 22 FADP now also contains an obligation for the controller to carry out a data protection impact assessment if processing may entail a high risk to the personality or fundamental rights of the data subject, which may result from the use of new technologies (Art. 22 para. 2 FADP) such as artificial intelligence. Finally, Articles 328 and 328b of the Code of Obligations guarantee the protection of employees’ privacy.
The current legal framework also contains instruments for asserting rights. The cantonal labor inspectorates are responsible for ensuring compliance with labor law regulations. Article 59 ArG in particular provides for criminal sanctions for violations of health protection provisions. In the event of violations of the Participation Act, employees’ associations can sue for a declaration (Art. 15 para. 2 of the Participation Act), and Article 7 GlG provides for the possibility of lawsuits and complaints by organizations that have been in existence for at least two years and which, according to their statutes, promote equality between women and men or protect the interests of employees. In addition, the Federal Council in its Dispatch of December 10, 2021 on the amendment of the Swiss Code of Civil Procedure (representative action and collective settlement) proposed to substantially strengthen collective redress. This bill is currently being discussed in parliament. On the basis of Article 49 paragraph 1 FADP, the Federal Data Protection and Information Commissioner (FDPIC) may open an investigation ex officio or upon notification if there are sufficient indications that data processing may violate data protection regulations. If necessary, he can order the processing of the data to be fully or partially adjusted, interrupted or discontinued and the personal data to be fully or partially deleted or destroyed (Art. 51 FADP). The FADP also provides for penalties for breaches of the duty of care or confidentiality and for disregarding orders issued by the FDPIC. The cantons are responsible for prosecuting and assessing criminal acts (Art. 60 ff. FADP).
AI is therefore developing not in a legal vacuum. The question of whether Swiss law is up to the challenges posed by AI is currently being examined. On November 22, 2023, the Federal Council DETEC and the FDFA instructedto draw up an overview of possible regulatory approaches for the use of artificial intelligence. The analysis, which should be available by the end of 2024, will also identify sector-specific regulatory requirements in connection with artificial intelligence. Based on this work, the Federal Council will decide whether there is a need for legislative action and how this should be taken into account. The results of this work should not be prejudged.