Right of co-determination: Code of conduct and monitoring as examples
Employers can regulate many aspects of employment relationships without having to involve the works council. However, Section 87 of the Works Constitution Act (BetrVG) establishes a right of co-determination for the works council in specific cases.
Section 87 (1) No. 1 of the Works Constitution Act (BetrVG) stipulates that the works council has a right of co-determination concerning issues relating company rules and the conduct of employees at the company. In this context, for example, a court has ruled that adding name badges to the work clothing of drivers is subject to co-determination as is the employer’s decision that English will be the language of communication at the company in future.
According to Section 87 (1) No. 6 of the Works Constitution Act (BetrVG), the works council also has a right of co-determination concerning the introduction and use of technical equipment which enables an employer to monitor its employees’ behavior. This can include implementing video surveillance in the workplace, for example, and also electronic time recording or the introduction of specific software.
Are internal AI guidelines subject to co-determination?
But what about regulations regarding the use of AI at the company? Companies are increasingly establishing internal guidelines to regulate the use of AI at work.
Are internal company guidelines governing the use of AI subject to co-determination pursuant to the Works Constitution Act?
This issue arose in a legal dispute before the Hamburg Labor Court: An employer had drawn up internal guidelines on the use of generative AI by employees. The guidelines explicitly permitted employees to use generative AI if they accessed browser applications freely available on the Internet or used private accounts online. At the same time, the guidelines also stipulated that employees must disclose if work results were achieved using AI. A usage obligation was not established. These guidelines were published on the company Intranet.
The works council objected to the guidelines on the grounds that it should have been involved when the regulations were issued in accordance with Section 87 (1) No. 1 or No. 6 of the Works Constitution Act (BetrVG).
The labor court ruling neither regulation of conduct nor monitoring
However, the labor court did not agree with the works council’s opinion. According to its decision, permission to use generative AI at the company and the requirements for working with it are not subject to co-determination.
On the one hand, the regulations did not govern orderly conduct but rather defined the work duties or work options in greater detail. Therefore, the regulations were within the scope of the employer’s right to issue instructions.
Nor did the court regard the AI usage guidelines as a regulation suitable for monitoring work behavior given that monitoring is not possible when using browser-based AI applications on the Internet without installing software, etc. The employer had no access to data from the AI provider.
What can we do for you?
Do you have questions about the use of AI at your company? Do you want to issue legally reliable internal regulations governing the use of AI for your company? Do not hesitate to contact us!
Summary of the key facts:
- Employers can permit the use of AI through internal regulations and specify rules for its use.
- These regulations do not govern orderly conduct and, therefore, they are not subject to co-determination pursuant to Section 87 (1) No. 1 of the Works Constitution Act (BetrVG).
- Internal company regulations on the use of AI are also not a suitable means of monitoring employees if the employer does not have access to the databases and chat histories. In this case, they are also not subject to co-determination pursuant to Section 87 (1) No. 6 of the Works Constitution Act (BetrVG).
