When the works council is allowed to have a say in AI agents

The use of AI agents does not always require the approval of the works council. The crucial factor is whether AI processes personal data for performance or behavior monitoring. An expert explains the legal situation.

The increasing use of AI agents is fundamentally changing the daily work routine of many companies. Employers and works councils are faced with the question of whether and when the works council must have a say in the introduction of new AI systems . The handling of personal data is crucial.

What do AI agents do?

Artificial intelligence is increasingly supporting companies in processing emails, generating reports, and automating and executing entire work processes. AI agents operate largely independently within defined frameworks and pursue goals specified by users. Depending on the application, they support individual work steps or control complete processes, for example, in customer service , logistics, or order management.

The works council's right of co-determination: This is what decides

Not every introduction of AI agents requires the approval of the works council . The decisive factor is what data the systems process and whether this allows conclusions to be drawn about the performance or behavior of employees. Employment law specialist Volker Görzel emphasizes: " According to the case law of the Federal Labor Court, the mere possibility of monitoring the behavior or performance of employees is sufficient to trigger a right of co-determination under Section 87 Paragraph 1 Number 6 of the Works Constitution Act (BetrVG) ."

AI agents do not always trigger a co-determination obligation . If an automated system is used in areas where it does not process relevant employee data, such as in fully automated production or logistics processes, there is generally no right of co-determination under Section 87 Paragraph 1 Number 6 of the German Works Constitution Act (BetrVG ).

You might also be interested in:

Operations management

Optician wins against data privacy challenger

Operations management

Digital occupational safety solutions: Safety through new technologies

Operations management

Equal Pay: Salary is no longer a secret

EU AI Regulation: No right of co-determination

"In addition to the Works Constitution Act, companies must comply with the European AI Regulation (AI Act) ," explains Görzel. "This obliges employers to assess risks, ensure transparency, and implement protective measures. However, the AI ​​Regulation does not establish an independent right of co-determination for works councils ." They should merely monitor compliance with legal requirements within the scope of their duties. The rules of the AI ​​Act only concern information obligations, not co-determination rights.

Therefore, the question of a right of co-determination is exclusively clarified by Section 87 Paragraph 1 Number 6 of the Works Constitution Act.

Companies should check the following before introducing AI agents.

"Companies should carefully determine which data is processed when implementing new AI applications and whether this enables performance or behavioral monitoring of employees," advises the specialist lawyer. "It is equally important to distinguish between information obligations to the works council and genuine co-determination rights . Thorough examination protects companies from unnecessary co-determination procedures. Incidentally, framework company agreements facilitate the introduction of new systems and prevent future conflicts."

Source: VDAA - Association of German Employment Lawyers e. V.

 The advisors at the Chambers of Crafts will be happy to help you with any legal questions!

DHB now also available digitally! Simply click here and register for the digital German Crafts Journal (DHB)!