No Right of Co-determination of the Works Council in the use of Private ChatGPT Accounts

The Hamburg Labor Court (24 BVGa 1/24) recently dealt with the question of whether the works council has a right of co-determination with regard to the employer’s instruction to use ChatGPT as a work tool in the future. In its decision of January 16, 2024, the court concluded that the works council in the underlying case had neither a right of co-determination under Section 87 (1) No. 1 of the German Works Constitution Act (BetrVG) nor under Section 87 (1) No. 6 BetrVG.

Background

The employer had unilaterally expressly permitted its employees to use AI applications – particularly ChatGPT – by publishing a corresponding declaration on the intranet and providing a guideline and a manual. These contained specifications for the use of AI applications, including the rule that employees must indicate instances in which AI was used to achieve the work result. There was no provision for the employer to introduce AI applications by setting up company accounts and installing the programs. Instead, employees were able to use freely accessible AI applications via an Internet browser or with their own private accounts. There was no obligation to use them.

The works council felt that this violated its right of co-determination under Section 87 (1) No. 1 and No. 6 BetrVG. It argued that the requirements for the use of AI affected the orderly conduct in the company and that it was also possible to monitor the performance and behavior of the employees by using the technical applications.

Decision of Hamburg Labor Court

The Hamburg Labor Court rejected the works council’s applications in the aforementioned proceedings. As a result, the works council cannot assert a right of co-determination in this case.

§ Section 87 (1) no. 1 BetrVG provides for a right of co-determination of the works council in the case of orders issued by the employer that concern the company’s organizational conduct – i.e. the order of the company and the conduct of the employees* in the company. Measures aimed at regulating the working behavior of employees, on the other hand, are not subject to co-determination. This includes employer regulations and specifications as to which work is to be carried out in which way, i.e. specifications that specify the work obligation.

The Hamburg Labor Court sees a clear reference to work behavior in the employer’s guidelines on the use of ChatGPT and similar AI applications assessed here. In the present case, the employer merely provides its employees with a new tool in compliance with the directive and the manual. This concerns the way in which work is performed, which is precisely why the works council has no right of co-determination based on the company’s organizational behavior.

Furthermore, Section 87 para. 1 no. 6 BetrVG provides for a separate right of co-determination of the works council in the introduction and use of technical equipment that is (at least also) suitable for monitoring the behavior or performance of employees. The works council argued that employees could also enter personal data relating to them into the systems when using AI applications, which means that the possibility of monitoring by the employer cannot be ruled out. The Hamburg Labor Court did not consider the works council’s right of co-determination to have been violated on this point either. The court found that the employer lacked the possibility of monitoring in the specific situation.

In the present case, ChatGPT and comparable AI applications were not installed on the employer’s computer system, and the employer did not provide any company accounts (managed by it) with the relevant providers. The employees were permitted to access the AI applications via an internet browser and were able to use their private (and not employer-managed) accounts with the AI provider companies. In this way, there is no possibility for the employer to check and evaluate usage histories, logs, etc. (which may be available in the private accounts), so that there is no possibility of monitoring the employees. Finally, the employer does not receive a notification when an employee has used ChatGPT or another AI application, nor to what extent and for what purpose it was used.

Practical Note

This is one of the first decisions by a German labor court on the complex issue of introducing artificial intelligence technologies into the workplace. Many more are sure to follow. The Hamburg Labor Court has taken a refreshingly clear position here, which in our view is comprehensible in all respects. It is certainly premature to draw general conclusions from this first decision. We look forward to seeing how the regional labor courts, and ultimately the Federal Labor Court will rule in the relevant proceedings. When introducing AI technologies in the workplace, employers are advised to examine the design of the use in detail and evaluate it from a legal perspective.

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