The Second Vice President of the Government and Minister of Labor, Yolanda Díaz, announced on Thursday that she had ordered the Labor Inspectorate to monitor “the use of algorithmic control” made by large technology companies “whether they are called Uber, Cabify or Amazon” in their relations with workers. The warning is preceded by the announcement of an ERE at Amazon, which would affect 1,200 employees of company offices, and to comply with it the Government will have to rely on regulations that are still in their infancy. The regulation of these issues is relatively recent, indeed it is in the phase of development or progressive implementation, hence the difficulty in determining non-compliance or possible sanctions in this regard. But Spain already has two reference regulations that refer to these aspects: the Workers’ Statute and the Law on the projection of personal data and the guarantee of digital rights.
The Workers’ Statute in article 64 indicates that, within the rights of information, consultation and powers of workers’ representatives (works committee), includes the right to “be informed by the company about the parameters, rules and instructions on which algorithms or artificial intelligence systems are based that influence decision-making processes that can affect working conditions, access to and maintenance of employment, including the creation of profiles”. Failure to comply with this obligation does not entail a specific sanction, but falls under the Law on Sanctions and Infringements of Social Order (LISOS). According to this rule, failure to comply with the information obligations towards the legal representation of workers constitutes a serious infringement which, depending on its severity (minimum, medium or maximum), is punishable by the company with a fine of between 751 euros and 7,500.
But Díaz was referring more specifically to the use of these algorithms in the organization of work. In this sense, he assured that his department will not “condone” the “Amazon model of working 120 hours a week, of having surveillance bracelets to know how long the employee goes to the bathroom, which not only Amazon does.” These cases would be regulated more precisely in the Organic Law on the Protection of Personal Data and Guarantee of Digital Rights. This text, in its article 88, regulates the right to privacy and the use of digital devices in the workplace. And it underlines that “the employer can access the contents deriving from the use of digital media provided to workers for the sole purpose of monitoring compliance with work or legal obligations and guaranteeing the integrity of said devices”.
Furthermore, if the company provides digital devices and allows their private use, the rule requires that “the company precisely specify the authorized uses”; and also to determine the periods in which devices can be used, among other things, for private purposes. The next three articles of this rule (89, 90 and 91) regulate, respectively, the right to digital disconnection in the workplace, the right to privacy against the use of video surveillance and sound recording devices in the workplace, and the right to privacy against the use of video surveillance and sound recording devices in the workplace.
Community standards
Outside of the national level, there are two EU regulations that also regulate the use of algorithms in the workplace in the European Union. The first is the European Regulation on Artificial Intelligence, the contents of which are only partially valid, since the full text is scheduled to come into force on August 2 of next year 2026. This regulation determines which are the “high risk” areas, according to the terminology it uses, in the use of algorithms and artificial intelligence. The working environment is precisely one of these and is specified as such.
However, for the moment, the rights contained in the law relating to the use of these tools at work are fundamentally of a preventive and informative nature. For example, companies are required to prepare risk prevention plans related to the use of IT applications, as well as to expressly communicate to the workers’ legal representatives and to the employees themselves that they will be used.
Finally, the European directive on platform work also includes a regulatory part on the use of algorithms and artificial intelligence. Here there are strict rules for the use of algorithms when they concern assignment of tasks, performance evaluation, compensation, blocking or expulsion from the platform and other working conditions. Likewise, it prohibits companies from making decisions regarding their workers based solely on algorithms without human intervention. This directive was partially transferred into the Spanish legal system through the so-called knight’s lawwhich regulates the situation of home delivery workers and served as the basis for arranging their inclusion as employees in the workforce of companies, which originally resorted to the figure of the false self-employed worker, according to numerous court rulings.
