Germany: Works Council Doesn’t Have a Say When Employees Use ChatGPT

Artificial intelligence (AI) can make work life easier. It is therefore not surprising that companies are keen to use the technical possibilities of AI, particularly by means of ChatGPT. However, use of AI in the workplace is accompanied by a large number of unresolved legal issues. From a labor law perspective, one of these questions is whether a works council has a say in the introduction of ChatGPT. In this context, here is an overview of the first decision on this issue before the Labor Court Hamburg.

What Was This Case About?

The employer wanted to allow its employees to use generative AI as a new tool to support their work. It published guidelines on the intranet for allowing the use of IT tools with artificial intelligence at work. The tools were used via web browser. If employees wanted to use the tools, they had to obtain a private account (in this case: ChatGPT) at their own expense.

The Group Works Council considered the authorization to use ChatGPT in conjunction with the publication of the guidelines to be a gross violation of its co-determination and participation rights. Among other things, they asked the employer to block ChatGPT and prohibit its use. After the employer refused to do so, the Group Works Council applied for an interim injunction against the employer.

Decision of the Labor Court

The Labor Court followed this argument and rejected the requested interim injunction. The applications for injunctions were unfounded, the court held, as the co-determination rights of the Group Works Council had not been violated. The court made the following findings:

• There was no violation of Section 87 (1) No. 1 of the Works Constitution Act (BetrVG). The guideline on the use of ChatGPT falls within the scope of work behavior not subject to co-determination. It only regulates the manner in which work is carried out. Making new work equipment available is not a part of work behavior.
• The right of co-determination pursuant to Section 87 (1) No. 6 BetrVG was also not violated in this particular case. The use of private ChatGPT accounts does not constitute a technical device intended to monitor behavior or performance. ChatGPT is not installed on the employer’s work equipment, nor does the employer provide company accounts. It is not possible for the employer to monitor private accounts. At most, the browser records that show the actual use of ChatGPT are to be assessed as a technical facility. However, the parties had already concluded a group works agreement on the use of internet browsers.
• There would also be no right of co-determination pursuant to Section 87 (1) No. 7 BetrVG. There was already no concrete risk in the present case.

The Labor Court pointed out that the information and consultation rights pursuant to Section 90 (1) No. 3, (2) BetrVG, which expressly mention artificial intelligence, must be upheld. However, Section 90 BetrVG grants only information and consultation rights and not co-determination rights. A possible violation therefore does not justify a claim for removal or injunctive relief.

Conclusion

The labor court sent a relieving signal for both companies, which can now quickly create legally secure regulations for use, and for employees, who have come to appreciate the enormous gain of efficiency at work. A company’s policies on the use of ChatGPT can be introduced at short notice with reference to the decision, even if a works council exists. We recommend the introduction of such regulations to provide employees with assistance and a framework for the use of generative AI. This serves to ensure correct, nondiscriminatory work products in the company. However, the information and consultation rights pursuant to Section 90 (1) No. 3, (2) BetrVG should be observed in any case.

It should be noted that the decision concerned the special case that the introduction of ChatGPT was to be carried out using private accounts and at the employees’ own expense. A different assessment of the legal situation will have to be made when providing company accounts for ChatGPT. It also remains to be seen whether other German courts will agree with the opinion of the Labor Court Hamburg. However, the Labor Court’s decision has laid the foundation for further discussions. 

Ulrike Schulke is an attorney with Littler in Frankfurt. Pia Papke is an attorney with Littler in Hamburg. © 2024 Littler. All rights reserved. Reposted with permission of Lexology.