AI in the employment relationship – opportunities and risks

by on 21. December 2023

The fact that the world of employment will change significantly in the future due to the use of artificial intelligence (AI) can hardly be seriously disputed. However, the first companies are already reporting that they are prohibiting or restricting the use of AI by their employees. What legal risks does the use of AI harbour and can employers regulate the use of AI in a reasonable way?

Why might employers want to regulate the use of AI?
The use of AI generally makes working methods more efficient and is therefore an advantage for employers. However, there are also risks involved. In particular, there is a risk that employees may violate data protection laws or unintentionally disclose trade secrets when using AI. In addition, it is generally not possible to ensure that the use of AI does not infringe the rights of third parties.

Irrespective of any infringements of rights, employers must also be aware that no copyrights regularly result from the works generated with the help of AI (see the blog post by Dr Kerstin Bäcker) and that employees therefore cannot grant the employer any rights to them. Consequently, the employer has no “exclusive right” to the outcome, cannot grant licences or prohibit use and therefore bears the risk of its product being copied. In this case, the employer would have hardly any legal options to take action against this.

For employers whose business model is based on the exploitation of intellectual creations (e.g. advertising agencies, film producers, publishers, etc.), it may therefore make sense for employees not to use AI in the creation of works. This is because the works can only be utilised successfully and in a controlled manner if they are protected by copyright.  Whether the opportunities of using AI outweigh the risks is an individual decision.

Violation of Section 613 BGB through the use of AI in the employment relationship?
There is currently a debate as to whether the use of AI by employees constitutes a breach of the requirement under Section 613 of the German Civil Code (BGB) to perform work in person. If this were the case, the employer would not have to explicitly prohibit the use of AI.

The argument against this is that the use of AI is similar to the use of technical aids and not the transfer to another person. However, it can be argued in favour of a violation of Section 613 BGB that the main service is no longer provided by the employee themselves, but by the AI.

Especially in the case of employees whose main task is the creation of creative works, it could be assumed, analogous to the assessment under copyright law, that this is not a personal intellectual creation and therefore not a personal provision of labour.

Recommendation: Instruction regarding the use of AI
Due to the uncertain legal situation regarding Section 613 of the German Civil Code (BGB), we recommend that employers introduce an explicit regulation regarding the use of AI. Besides the general authorisation or prohibition, the use of AI can also be permitted with appropriate restrictions. For example, employers can limit the use of AI to certain AI providers or to certain areas of activity. This can minimise the risks of using AI.

If there is no provision on this in the employment contract or the applicable collective agreement, the employer can regulate the use of AI unilaterally. This follows from the right to issue instructions in accordance with Section 106 GewO. Due to the risks listed, the employer can generally regulate the use of AI within the scope of equitable discretion.

In our next blog post on the topic of AI in the employment relationship, you can read about the requirements employers should impose on their employees when authorising the use of AI in the context of the employment relationship.