With the Legislative Decree “Transparency Work” no. 104/2022, implementing the European Directive 2019/1152, the provisions relating to the information that employers are required to provide to new hires and workers already in force.
In addition to information on employment relationship (salary, working hours, holidays, classification, probationary period, etc.) that the employer, and also the customer, must give, additional disclosure obligations have been envisaged if they are used decision-making systems need automated monitoring. That is to say those tools which, through the activity of data collection and processing of the same carried out through, for example, algorithm or artificial intelligence, are able to generate automated decisions, even if human intervention is merely ancillary.
Use of automated decision-making or monitoring systems
In particular, the decree provides that the employer or the public and private client are required to inform the worker of theuse of automated systems, responsible for providing relevant information for the purpose of hiring or conferring an assignment, managing or terminating the employment relationship, assigning tasks or duties, as well as information relating to surveillance, assessment, performance and fulfillment of the workers' contractual obligations, without prejudice to the provisions of the Workers' Statute on remote controls.
The information must be provided in a transparent manner, in a structured, commonly used and machine-readable format.
It is therefore possible to identify two distinct hypotheses that the legislative decree wanted to regulate for informative aspects, if automated systems are used that are:
1) aimed at carrying out a decision-making process capable of affecting the employment relationship;
2) incidents on the surveillance, evaluation, performance and fulfillment of workers' contractual obligations.
Basically, the employer must provide information when the employee's work performance, or its particular relevant aspects, are entirely left to the decision-making activity of automated systems.
Disclosure obligations between the Transparency Decree and the 2023 Labor Decree
For example, thedisclosure obligation exists in the following cases:
a) recruitment or assignment through the use of chabots during the interview, the automated profiling of candidates, the screening of curricula, the use of software for emotional recognition and psycho-aptitude tests, etc.
b) management or termination of the employment relationship with automatic assignment or revocation of tasks, duties or shifts, definition of working hours, productivity analysis, determination of remuneration, promotions, etc., through statistical analyses, data analysts tools or machine learning, artificial neural networks, deep learning, etc.
Moreover, a restrictive or extensive interpretation of the regulation examined could have led to disclosure of information also on systems protected by industrial or commercial secrecy.
The recent one intervened on this point Labor Decree 2023, which, in simplifying the methods of communication of the information to be given to the worker, in the hypothesis of use of automated decision-making or monitoring systems, established that the disclosure obligations they arise only in the case of fully automated systems and do not apply to systems protected by industrial or commercial secrecy.
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