Acceso usuarios
Matthew Ginsburg
Giovanni Gaudio posits that “algorithmic management practices” have increasingly displaced the “human exercise of . . . managerial prerogatives” in many workplaces. Specifically, “companies are . . . increasingly recurring to these tools to perform several Human Resources management functions, such as recruiting candidates, allocating tasks, scheduling work shifts, and managing the performance of their workforce.” Gaudio explains that because algorithms are often “legally inaccessible or technically indecipherable,” the growth of algorithmic management practices has “increas[ed] the information asymmetries in the already unbalanced relationship between the parties to an employment contract.” Situating himself in the context of the European Union legal system, Gaudi considers “whether there are rules that may foster transparency and avoid abuses of employers’ managerial prerogatives potentially arising from the increasing recourse to algorithmic management practices.” He concludes that “information and access rights” under the European Union General Data Protection Regulation (GDPR) are “critical,” permitting “employees to collect information that may be used in pleading the facts and presenting the evidence to a court,” which is of special importance “in civil-law European Union legal systems that lack pre-trial discovery procedures.” Gaudio also notes the importance, “[i]n civil-law systems, [of] rules granting employment judges with broad powers of obtaining evidence” and “rules . . . that entirely or partially shift the burden of proof to the employer and that introduce presumptions in favor of the employee.” Finally, Gaudio notes that the right to information about algorithmic management practices “may also be negotiated by trade unions . . . , with a view to enlarge the scope of the information that shall be provided to trade unions and workers by employers when processing their personal data.” In summary, Gaudio concludes that “a rethinking of employment laws as they are today [in the European Union] does not really seem necessary” to address “the issues created by the use of algorithmic management devices in the workplace,” but rather those laws “need a fitness check . . . to better face the challenges posed by the algorithmic revolution.” In this brief response, I provide a view from the United States on these important issues. Because there is no federal analog to the GDPR in the United States, I focus primarily on how information concerning an employer’s algorithmic management practices might be accessed through litigation, as well as how such practices might be disclosed as part of the collective bargaining process. I then discuss how future federal legislation in the United States might best be crafted so as to facilitate the disclosure of information concerning algorithmic management devices in a manner that promotes transparency and prevents the abusive use of such devices. In this regard, I pay special attention to the recently enacted California data protection law, whose employment-related provisions take effect next year.
