Limitations on the processing of personal data by means of automated monitoring systems or automated decision-making systems
1. Digital labour platforms shall not, by means of automated monitoring systems or automated decision-making systems:
(a)
process any personal data on the emotional or psychological state of a person performing platform work;
(b)
process any personal data in relation to private conversations, including exchanges with other persons performing platform work and the representatives of persons performing platform work;
(c)
collect any personal data of a person performing platform work while that person is not offering or performing platform work;
(d)
process personal data to predict the exercise of fundamental rights, including the freedom of association, the right of collective bargaining and action or the right to information and consultation as laid down in the Charter;
(e)
process any personal data to infer the racial or ethnic origin, migration status, political opinions, religious or philosophical beliefs, disability, state of health, including chronic disease or HIV status, emotional or psychological state, trade union membership, sex life or sexual orientation;
(f)
process any biometric data, as defined in Article 4, point (14), of Regulation (EU) 2016/679, of a person performing platform work to establish that person’s identity by comparing that data to stored biometric data of natural persons in a database.
2. This Article shall apply to all persons performing platform work from the start of the recruitment or selection procedure.
3. In addition to automated monitoring systems and automated decision-making systems, this Article shall also apply where digital labour platforms use automated systems taking or supporting decisions that affect persons performing platform work in any manner.
Data-protection impact assessment
1. The processing of personal data by a digital labour platform by means of automated monitoring systems or automated decision-making systems is a type of processing which is likely to result in a high risk to the rights and freedoms of natural persons within the meaning of Article 35(1) of Regulation (EU) 2016/679. When carrying out, pursuant to that provision, the assessment of the impact of the processing of personal data by automated monitoring systems or automated decision-making systems on the protection of personal data of persons performing platform work, including on the limitations of processing pursuant to Article 7 of this Directive, digital labour platforms, acting as controllers as defined in Article 4, point (7), of Regulation (EU) 2016/679, shall seek the views of persons performing platform work and their representatives.
2. Digital labour platforms shall provide the assessment as referred to in paragraph 1 to workers’ representatives.
Transparency with regard to automated monitoring systems and automated decision-making systems
1. Member States shall require digital labour platforms to inform persons performing platform work, platform workers’ representatives and, upon request, national competent authorities, of the use of automated monitoring systems or automated decision-making systems.
That information shall concern:
(a)
as regards automated monitoring systems:
(i)
the fact that such systems are in use or are in the process of being introduced;
(ii)
the categories of data and action monitored, supervised or evaluated by such systems, including evaluation by the recipient of the service;
(iii)
the aim of the monitoring and how the system is to carry out that monitoring;
(iv)
the recipients or categories of recipient of the personal data processed by such systems and any transmission or transfer of such personal data, including within a group of undertakings;
(b)
as regards automated decision-making systems:
(i)
the fact that such systems are in use or are in the process of being introduced;
(ii)
the categories of decision that are taken or supported by such systems;
(iii)
the categories of data and the main parameters that such systems take into account and the relative importance of those main parameters in the automated decision-making, including the way in which the personal data or behaviour of the person performing platform work influence the decisions;
(iv)
the grounds for decisions to restrict, suspend or terminate the account of the person performing platform work, to refuse the payment for work performed by them, as well as for decisions on their contractual status or any decision of equivalent or detrimental effect;
(c)
all categories of decision taken or supported by automated systems that affect persons performing platform work in any manner.
2. Digital labour platforms shall provide the information referred to in paragraph 1 in the form of a written document, which may be in electronic form. The information shall be presented in a transparent, intelligible and easily accessible form, using clear and plain language.
3. Digital labour platforms shall provide persons performing platform work, in a concise form, with the information referred to in paragraph 1 with regard to the systems and their features that directly affect them, including, where applicable, their working conditions:
(a)
at the latest on the first working day;
(b)
prior to the introduction of changes affecting working conditions, the organisation of work or monitoring work performance; and
(c)
at any time upon their request.
Upon the request of the persons performing platform work, digital labour platforms shall also provide them, in a comprehensive and detailed form, with the information referred to in paragraph 1 with regard to all relevant systems and their features.
4. Digital labour platforms shall provide workers’ representatives, in a comprehensive and detailed form, with the information referred to in paragraph 1 with regard to all relevant systems and their features. They shall provide such information
(a)
prior to the use of those systems,
(b)
prior to the introduction of changes affecting working conditions, the organisation of work or monitoring work performance; and
(c)
at any time upon their request.
Digital labour platforms shall provide national competent authorities, in a comprehensive and detailed form, with the information referred to in paragraph 1 at any time upon their request.
5. Digital labour platforms shall provide the information referred to in paragraph 1 to persons undergoing a recruitment or selection procedure. The information shall be provided in accordance with paragraph 2, shall be concise, shall concern only the automated monitoring systems or automated decision-making systems used in that procedure, and shall be provided before the start of the recruitment or selection procedure.
6. Persons performing platform work shall have the right to the portability of personal data generated through their performance of work in the context of a digital labour platform’s automated monitoring systems or automated decision-making systems, including ratings and reviews, without adversely affecting the rights of the recipient of the service under Regulation (EU) 2016/679.
The digital labour platform shall provide persons performing platform work, free of charge, with tools to facilitate the effective exercise of their portability rights referred to in Article 20 of Regulation (EU) 2016/679 and in the first subparagraph of this paragraph. Where the person performing platform work so requests, the digital labour platform shall transmit such personal data directly to a third party.
Human oversight of automated monitoring systems and automated decision-making systems
1. Member States shall ensure that digital labour platforms oversee and, with the involvement of workers’ representatives, regularly and in any event every two years, carry out an evaluation of the impact of individual decisions taken or supported by automated monitoring systems and automated decision-making systems on persons performing platform work, including, where applicable, on their working conditions and equal treatment at work.
2. Member States shall require digital labour platforms to ensure sufficient human resources for the effective oversight and evaluation of the impact of individual decisions taken or supported by automated monitoring systems or automated decision-making systems. The persons charged by the digital labour platform with the function of oversight and evaluation shall have the competence, training and authority necessary to exercise that function, including for overriding automated decisions. Those persons shall enjoy protection from dismissal or its equivalent, disciplinary measures and other adverse treatment where they exercise their functions.
3. Where the oversight or the evaluation referred to in paragraph 1 identifies a high risk of discrimination at work in the use of automated monitoring systems or automated decision-making systems or finds that individual decisions taken or supported by automated monitoring systems or automated decision-making systems have infringed the rights of a person performing platform work, the digital labour platform shall take the steps necessary, including, if appropriate, the modification of the automated monitoring system or the automated decision-making system or the discontinuation of its use, in order to avoid such decisions in the future.
4. Information on the evaluation pursuant to paragraph 1 shall be transmitted to platform workers’ representatives. Digital labour platforms shall also make that information available to persons performing platform work and the national competent authorities upon their request.
5. Any decision to restrict, suspend or terminate the contractual relationship or the account of a person performing platform work or any other decision of equivalent detriment shall be taken by a human being.
Human review
1. Member States shall ensure that persons performing platform work have the right to obtain an oral or written explanation from the digital labour platform for any decision taken or supported by an automated decision-making system without undue delay. The explanation shall be provided in a transparent and intelligible manner, using clear and plain language. Member States shall ensure that digital labour platforms provide persons performing platform work with access to a contact person designated by the digital labour platform to discuss and to clarify the facts, circumstances and reasons having led to the decision. Digital labour platforms shall ensure that such contact persons have the competence, training and authority necessary to exercise that function.
Digital labour platforms shall provide the person performing platform work with a written statement of the reasons for any decision taken or supported by an automated decision-making system to restrict, suspend or terminate the account of the person performing platform work, any decision to refuse the payment for work performed by the person performing platform work, any decision on the contractual status of the person performing platform work, any decision with similar effects or any other decision affecting the essential aspects of the employment or other contractual relationships, without undue delay and at the latest on the date on which it takes effect.
2. Persons performing platform work and, in accordance with national law or practice, representatives of persons performing platform work acting on their behalf shall have the right to request the digital labour platform to review the decisions referred to in paragraph 1. The digital labour platform shall respond to such request by providing the person performing platform work with a sufficiently precise and adequately substantiated reply in the form of a written document, which may be in electronic form, without undue delay and in any event within two weeks of receipt of the request.
3. Where the decision referred to in paragraph 1 infringes the rights of a person performing platform work, the digital labour platform shall rectify that decision without delay and in any case within two weeks of the adoption of the decision. Where such rectification is not possible, the digital labour platform shall offer adequate compensation for the damage sustained. In any event, the digital labour platform shall take the steps necessary, including, if appropriate, the modification of the automated decision-making system or the discontinuation of its use, in order to avoid such decisions in the future.
4. This Article does not affect disciplinary and dismissal procedures laid down in national law, collective agreements and practice.
5. This Article shall not apply to persons performing platform work who are also business users as defined in Article 2, point (1), of Regulation (EU) 2019/1150.
Safety and health
1. Without prejudice to Directive 89/391/EEC and related directives in the field of safety and health at work, with regard to platform workers, digital labour platforms shall:
(a)
evaluate the risks of automated monitoring systems and automated decision-making systems to their safety and health, in particular as regards possible risks of work-related accidents, psychosocial and ergonomic risks;
(b)
assess whether the safeguards of those systems are appropriate for the risks identified in view of the specific characteristics of the work environment;
(c)
introduce appropriate preventive and protective measures.
2. In relation to the requirements laid down in paragraph 1 of this Article, digital labour platforms shall ensure effective information and consultation and the participation of platform workers and/or their representatives in accordance with Articles 10 and 11 of Directive 89/391/EEC.
3. Digital labour platforms shall not use automated monitoring systems or automated decision-making systems in a manner that puts undue pressure on platform workers or otherwise puts at risk the safety and physical and mental health of platform workers.
4. In addition to automated decision-making systems, this Article shall also apply where digital labour platforms use automated systems taking or supporting decisions that affect platform workers in any manner.
5. In order to ensure the safety and health of platform workers, including from violence and harassment, Member States shall ensure that digital labour platforms take preventive measures, including providing for effective reporting channels.
Information and consultation
1. This Directive is without prejudice to Directive 89/391/EEC as regards information and consultation and to Directives 2002/14/EC or 2009/38/EC of the European Parliament and of the Council ( 18 ) .
2. Member States shall ensure that information and consultation, as defined in Article 2, points (f) and (g), of Directive 2002/14/EC, of workers’ representatives by digital labour platforms also covers decisions likely to lead to the introduction of or to substantial changes in the use of automated monitoring systems or automated decision-making systems.
For the purposes of this paragraph, information and consultation of workers’ representatives shall be carried out under the same arrangements concerning the exercise of information and consultation rights as those laid down in Directive 2002/14/EC.
3. The platform workers’ representatives may be assisted by an expert of their choice, in so far as this is necessary for them to examine the matter that is the subject of information and consultation and formulate an opinion. Where a digital labour platform has more than 250 workers in the Member State concerned, the expenses of the expert shall be borne by the digital labour platform, provided that they are proportionate. Member States may determine the frequency of requests for an expert, while ensuring the effectiveness of the assistance.
Provision of information to workers
Where there are no representatives of platform workers, Member States shall ensure that digital labour platforms directly inform the platform workers concerned of decisions likely to lead to the introduction of or to substantial changes in the use of automated monitoring systems or automated decision-making systems. The information shall be provided in the form of a written document which may be in electronic form. It shall be provided in a transparent, intelligible and easily accessible form, using clear and plain language.
Specific arrangements for representatives of persons performing platform work other than platform workers’ representatives
Representatives of persons performing platform work other than workers’ representatives shall be able to exercise the rights provided to workers’ representatives under Article 8(2), Article 9(1) and (4), Article 10(4) and Article 11(2) only insofar as they are acting on behalf of persons performing platform work who are not platform workers, with regard to the protection of their personal data.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
