External AI expert for the works council - legally compliant support for the use of artificial intelligence in companies

With the increasing use of artificial intelligence (AI) in the workplace, works councils are facing new, complex challenges: Data protection, co-determination, technical transparency and legal limits must be considered and evaluated when introducing AI systems.

§ Section 80 (3) BetrVG gives the works council the option of consulting external experts when assessing such issues - especially if AI systems are to be introduced or used.

§ Section 80 (3) sentence 2 BetrVG: If the works council has to assess the introduction or use of artificial intelligence in order to fulfil its duties, it is deemed necessary to consult an expert in this respect.

 

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Why is legal expertise essential for the works council in AI projects?

Artificial intelligence is profoundly changing work processes. Many systems interfere with the rights of employees, for example through:

  • Performance and behaviour monitoring,
  • automated decisions in recruiting, shift planning or target setting,
  • the processing of sensitive employee data.

The works council must be able to assess these interventions and categorise them legally. We can help with this. Our specialist lawyers combine legal expertise in IT law, data protection law and labour law with an understanding of technology.

Why a specialised AI expert makes sense for the works council

Our expertise in the use of AI in companies is based on:

  • Comprehensive knowledge of the technical fundamentals of algorithmic systems,
  • in-depth understanding of the GDPR, the BDSG and other data protection regulations
  • experience with co-determination rights for technical equipment (Section 87 (1) No. 6 BetrVG),
  • current case law on automated decision-making (e.g. ECJ SCHUFA judgement).

What we do as external AI experts

Our services for works councils in the context of artificial intelligence in companies:

  • Preparation of legal opinions on the legal assessment of AI systems,
  • Review of technical documentation from a legal perspective,
  • Analysis of conformity with data protection law,
  • Support in drafting and negotiating AI works agreements,
  • Workshops and training on the topic of AI in the company,
  • ongoing advice and support during the introduction or customisation of AI systems.

Our work is always carried out independently, confidentially and in close consultation with the works council. The complexity of the AI technologies used regularly justifies our involvement - a fact that is also increasingly recognised by the courts.

Support for the works council with artificial intelligence: what we also do

  • Advice on drafting legally compliant AI works agreements
  • Tactical support in negotiations with the employer
  • Protection of employee rights during the introduction of AI systems
  • Training and qualification of the works council committee on AI topics

Are you looking for expert support for your works council when it comes to artificial intelligence in your company?

Contact us for a non-binding initial consultation - we offer you legally sound, technology-related advice on the use of AI in your company. Whether legal assessment, AI works agreement or training: our specialist lawyers will support your committee as recognised AI experts in accordance with Section 80 (3) BetrVG.

RAin Michaela Berger

Your partner

Lawyer Michaela Berger, LL.M.

Certified Specialist in IT law
certified data protection officer (TÜV Süd)
certified data protection auditor (TÜV Süd)
Partner

Michaela.Berger@rdp-law.de
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FAQ – External AI expert for the works council

According to Section 80 (3) of the Works Constitution Act (BetrVG), the works council may consult an external expert if this is necessary for the proper performance of its duties. If the works council has to assess the introduction or application of artificial intelligence, the consultation of an expert is generally considered necessary in accordance with Section 80 (3) sentence 2 BetrVG.

If the requirements of Section 80 (3) BetrVG are met, the employer must bear the costs of the external AI expert. The prerequisite is that the appointment is necessary and that a corresponding agreement has been reached with the employer.

AI systems in companies regularly affect co-determination rights, data protection issues and technical control options. A specialised AI expert combines expertise in labour law, data protection law and technology and supports the works council in the legally compliant assessment of complex AI applications.

According to Section 87 (1) No. 6 of the Works Constitution Act (BetrVG), the works council has a mandatory co-determination right with regard to technical equipment that is capable of monitoring the behaviour or performance of employees. Many AI systems – for example, in the HR area or for performance analyses – fall under this provision.

AI systems often process personal and sensitive employee data. The works council must therefore check compliance with the GDPR and BDSG. An external AI expert provides support in analysing data protection risks, conducting data protection impact assessments and evaluating automated decisions.

Automated decisions, for example in recruiting or performance evaluations, can significantly interfere with employees' rights. Among other things, Art. 22 GDPR and current case law, such as the ECJ SCHUFA ruling, are decisive here. The works council must check whether human review and sufficient transparency are guaranteed.

An external AI expert advises the works council on the design and negotiation of AI works agreements. This involves developing regulations on transparency, purpose limitation, data minimisation, control mechanisms, deletion periods, human oversight and training measures.

Risks include performance and behaviour monitoring, algorithmic discrimination, non-transparent decision-making logic, faulty data processing and unauthorised profiling. The works council is obliged to examine these risks and protect the rights of employees.

The tasks include legal opinions on the introduction of AI systems, reviewing technical documentation, assessing data protection compliance, providing support in conciliation proceedings, training the works council and providing ongoing advice on adjustments or updates to AI applications.

Whether consultation is necessary depends on the complexity and intensity of the AI system. In the case of data-intensive or surveillance-related AI applications, the necessity is regularly affirmed, especially if the works council cannot properly assess the technical and legal implications without external expertise.

The works council receives independent, specialised support, can conduct negotiations on an equal footing and effectively exercise its co-determination rights. At the same time, legal certainty is increased when introducing AI systems in the company.

Ideally, involvement should begin as early as the planning phase of an AI project. An early legal and technical assessment facilitates the drafting of a legally compliant AI works agreement and prevents later conflicts.