The robots are coming: legalities in the workplace

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The use of robotics in the workplace raises new legal questions on leadership, safety and discrimination

Robots will begin displacing many workers in the near future. This raises multiple questions, starting with whether jobs will be lost in the process and what skills employees will need to keep their jobs in that environment. Employers also face legal questions. Robotics introduce many risks and unknowns into labour law, and create working conditions that were unthinkable when much labour legislation was enacted.

The robots are coming. Which robots?

So far humanoid robots have not achieved technological and economic significance in global workplaces. The roughly 300,000 industrial robots placed into operation each year, however, have.

Robots play a big part in the logistics and transport industries. In the service sector robots can now be found in hotels, restaurants and retail. Personal care robots help, entertain, supervise and cater to elderly people. Robot exoskeletons are becoming more popular, allowing people to lift heavy objects, move in a more sustained way, or even walk despite spinal injuries. Exoskeletons in industry can prevent work-related musculoskeletal ailments and absences due to illness and disability.

When a robot is the boss

Hitachi has developed a robot that assigns work tasks to human employees and issues instructions. However, instructions have to stay within the scope of what a human boss is allowed to give, and a human senior manager must take responsibility for the robot’s commands. It is also conceivable that the time will come when an algorithm decides whether to fire employees. A manager robot can make the decision for a dismissal and suggest it, but is not allowed to give somebody notice. Only a human being can legally give notice under most national employment laws.

The occupational safety challenge

Robotics create new prevention challenges regarding occupational safety. Personal care robots challenge the concept of occupational safety because they are used for a variety of tasks in environments that are not precisely defined, because they come into contact with non-specialised users, and because they share the workspace with humans. Therefore safety standards must be defined formally on an international level, as the 2014 ISO standard on personal care robots does.

Collaborative robots – cobots – are a new generation of industrial robots that overcome safety barriers and emerge from behind protective bars. The combined use of cobots and human employees will revolutionise production in factories around the globe. ISO technical specification 15066 spells out safety requirements for collaborative robots, including specific rules for analysing and controlling risks.

Assessing legal risk regarding industrial safety is difficult in a workplace that includes a personal care robot or a cobot. New approaches will be necessary and both humans and robots must be trained to ensure safe contact.

Protection against discrimination

Robotic systems must be programmed so they do not discriminate directly or indirectly. ‘Hiring-by-algorithm’ programs must meet requirements for admissible interview questions and comply with laws against discrimination and disparate impact. Robots that are programmed to ask questions of applicants, answer questions, and measure an applicant’s physiological reactions must adhere to all requirements of privacy protection in employment relationships and the relevant data protection laws.

Exoskeletons can also raise equality and discrimination issues. First, there is the question of whether they should legally be treated as body parts. Second, exoskeletons could become reasonable accommodations. For example, in certain cases an employee may be entitled to such an accommodation from their employer.

Do we need new laws?

Lawmakers must decide whether legal foundations need to be modified or whether entirely new ones are necessary. I think we have to exercise restraint until the necessity for new laws becomes clear. The consequences of robotics in the workplace must be considered in relation to other phenomena such as migration, superannuation and globalisation. It is not primarily robotics that will define what our future will look like.

Isabelle Wildhaber is a professor of private and commercial law at the University of St. Gallen, and director of the Institute for Work and Employment Research

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