How will AI affect the Labor and employment Laws as well as the employer-employee relationship?

Introduction

AI is likely to reshape the work environment by changing the content and design of their jobs, the way employees interact with each other and with machines and how work effort and efficiency are monitored. The purpose of Labor law is to protect the parties in an employment contract. In a broader sense, the labor laws are meant to protect the weaker party who is the employee. So far, there is no legislation that regulates AI at work.

In this article we are going to briefly?look at the 5 parts in which AI may affect the employer-employee relationship.

Employment protection when AI replaces humans

Introduction of AI & robots means that some jobs can disappear and new ones created. Some employees can therefore be declared redundant. Currently, the Kenyan Labor and Employment laws do not hinder employers from replacing workers with robots and/or AI. The employer’s decision to replace humans with AI and robots may render the employees redundant for economic, technological and structural reasons hence resulting to termination of the employment contract, on the ground of redundancy which is recognized by the law.

AI as an employer- Is it possible to be an employer?

An algorithm or an AI can perform the role of a manager at work to the extent that the actions taken can be construed as emanating from human, legally holding the power to give instructions and allocate work. This can be stipulated in the employment contract, may be a clause that a robot will represent the will of the employer and that the employee is to receive binding instructions from robot. The instructions must be given in line with the labor laws and the terms of the contract. AI systems must also not be in breach of the data protection law, like the right to transparency regarding processing and the right not to be profiled. Since the employer has an upper hand in matters employment, there is a power imbalance that may result to the employee being unable to freely consent to every type of data processing.

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How can AI affect the health and safety of the employees in the workplace?

Robots and AI at workplace present both challenges and opportunities for health and safety at work. The employer is therefore required to ensure that at workplace, machinery equipment and processes under his/her control are safe and without risk to the health of human employees. AI at workplace can be for workers engaged in dangerous work. Should a worker be injured by a robot, would that amount to an occupational injury? Also Due to autonomous and possibly unpredictable behavior of robots, human working alongside robots thinking machines might experience new forms of stress and mental health risks. Employers are obliged to take measures to decrease these risks. Employees working alongside robots and algorithms should be provided with the right training on new machinery and algorithms. A recommendation is that when human employees are working closely with robots & AI, the Health & safety laws must be updated to take into the account?the injuries arising from robots and machines.

Equal treatment to all employees-Can AI cause discrimination in recruitment?

The use of AI can present new problems regarding both direct and indirect discrimination at workplace. Some companies are using AI bots to skim through resumes for keywords. AI can be used in HR processes such as hiring and firing of employees. AI has become popular in recruitment processes especially in ATS compliant applications. Some companies prefer using AI during recruitment because unlike humans, AI can go through databases and resumes much faster and cheaper in humans.?However, for the last two decades, human recruitment has been prone to human bias. For example, in America, being a white male candidate tends to be a huge advantage in the job market. The hiring company must ensure that all applicants and/or employees are protected from bias or any form of discrimination.

Employer-employee data protection and surveillance issues that may arise

In order for AI, algorithms and robots to operate and learn, they must collect and process vast amounts of data. In the context of the workplace, personal data pertained to the employees, their personnel records, past work performance etc. AI systems must respect data protection legislation which prescribes rights and duties on part of the employer and employee.

An employer is allowed to implement surveillance systems at work, but they must respect employee’s privacy and the employee must also be informed of the surveillance in advance. In Kenya, the provisions of the Constitution of Kenya ,2010 and the Data Protection Act,2019 must be considered.

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Conclusion

Labor lawyers must continue to engage with the topic of AI to ensure that the goal of labor protection can be realized into future context of bid data, robotics, the internet of things and AI.

Kenya and Africa at large can also borrow from the OECD AI principles adopted in May 2019, that seek to promote use of AI that is trustworthy and that respects human rights and democratic values. This will ensure that AI respects the rule of law, human rights and democratic values, throughout the AI system lifecycle. These include freedom, dignity and autonomy, privacy and data protection, non-discrimination and equality, diversity, fairness, social justice, and internationally recognized labor rights.