Legal Regulation of Employment in a Digital Society

Filyushchenko Lyudmila Ivanovna ORCID: 0000-0002-0206-4505 PhD in Law Associate Professor, Department of Legal Regulation of Economic Activity, Ural Federal University named after the First President of Russia B.N. Yeltsin 620002, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Mira, 19, of. I-406 filuschenko@mail.ru Other publications by this author

Digital technologies have become firmly embedded in our lives. However, scientists rightly note the unresolved issues in the legislation regarding the use of digital technologies, including the use of artificial intelligence in various spheres of our lives. This fully applies to employment relations, since the interests of millions of citizens are affected in the exercise of one of the most important socio-economic rights – the right to work. With the active use of digital technologies, automation and robotics, a person is being displaced from the field of employment. Foreign and Russian scientists note that labor legislation in its current form is not able to protect workers from "the achieved level of development of robotics and artificial intelligence, which have changed working conditions, contributing to a decrease in labor standards and an increase in inequality" ^{[1, p. 94]}. People find themselves in a discriminated position, inequality between people is replaced by inequality between man and machine. Scientists note the unacceptability of such a situation from a legal point of view ^{[2, p. 103]}. The purpose of the research in this article is to analyze the impact of digital technologies on the legal regulation of employment relations and employment of citizens. In this regard, the tasks are set to analyze the legislation regulating employment relations, to study the practice of using digital technologies in the employment process, to formulate proposals to mitigate the negative impact of the use of digital technologies in the selection of employees, to prevent infringement of their labor rights.

The labor market is significantly affected by the processes of digitalization. In the field of employment and labor relations, the problem is the displacement of people from public production by artificial intelligence. The prospects of replacing a person in certain professions and areas of activity are perceived by people as certain risks. They are afraid of losing their job and, accordingly, their source of income. According to some scientists, the expansion of the use of artificial intelligence will lead to the deprivation of about 70-75% of employees over the next 10-15 years due to their displacement by various bots and algorithms. For example, it is predicted the disappearance of such professions as taxi driver – by 2038, accountant – by 2028, air traffic controller – by 2038, translator – by 2031, etc. ^{[3, pp. 39-41]}. 

Difficulties with employment are experienced primarily by such categories as persons of pre-retirement age. It is difficult for them to adapt to new conditions, the disappearance of professions, the need to retrain, change the field of activity. Under the onslaught of robotics, the limitations of professions are noted even for middle-aged workers.  Young people, including graduates of educational organizations, are experiencing difficulties with finding employment. The youth unemployment rate is higher than the unemployment rate in general. According to the Ministry of Labor, more than a third of university graduates do not work in their specialty, and there is only one vacancy for five young people without work experience. On the one hand, young people are more prepared to work in the information environment, and on the other hand, lack of work experience often serves as an obstacle to admission. It cannot be said that the State has withdrawn from solving these issues and is not taking measures. Thus, it is provided that employers can apply for a state subsidy when hiring young people under 30 years of age and employing other categories of citizens using the "Work in Russia" platform. However, the response is slow. Digitalization is proceeding rapidly, and this is not only a benefit, positive effects in business, management, etc., which is usually emphasized, but also the strengthening of negative trends, the creation of new problems for society.

The basis of the employment and employment program is the portal "Work in Russia", which contains a number of services and is constantly updated ^[4]. HR services of organizations and citizens looking for work interact with the portal. By registering on the portal, they can submit the appropriate documents, which expands the possibilities of job search, including for foreign citizens. The Decree of the Government of the Russian Federation on the use of the digital platform in the field of employment and labor relations dated May 13, 2022 No. 867 stipulates that citizens looking for work post information about themselves, including resumes, interact with employers, educational organizations, and employment service bodies ^[5]. The posted information is subject to the requirement of the absence of discriminatory circumstances specified in Article 64 of the Labor Code of the Russian Federation. The question of the preferred or preferential employment of a place by an employee (or a robot) was not reflected.

The aggravation of the employment problem in connection with the digitalization of society poses the task of creating a mechanism for protecting the rights and interests of employees. For this purpose, proposals are sometimes made to establish quotas of jobs for people ^{[6, p. 83]}. It is difficult to say whether this measure will solve the employment problem. The practice of the quota mechanism for jobs, for example for the disabled, shows that it is far from perfect and employers, unfortunately, do not consider it shameful, reprehensible to violate the rights, discriminate against this category of workers, which is clearly shown by judicial practice. It is difficult to compete with robots, they are superior to humans in a number of positions. The economic interest in the use of automation and robotization pushes employers to replace people with robots. To mitigate the consequences, to prevent a sharp simultaneous deterioration of the unemployment situation, it should be provided that the determination of the proportion of jobs replaced by robots should be taken into account the opinion of the representative body of employees according to the rules of Article 372 of the Labor Code of the Russian Federation or in a collective agreement. If such a decision is made, it is necessary to provide for the employer's obligation to employ an employee – to offer a transfer to another workplace (position). To increase the competitiveness of workers with robots and artificial intelligence, it is important to acquire a sought-after profession, retraining, and advanced training. The development of a person's potential should be in those areas of activity where it is impossible to do without his abilities (productive, creative). A list of training areas that are promising and will allow us to successfully compete with artificial intelligence in the future has been developed. It will be replenished in accordance with the implementation of the federal project "Personnel for the digital Economy". Information about the areas of training implemented within the framework of the federal project "Employment Promotion" on a free basis is posted on the website "Work in Russia". 345 thousand Russians are expected to participate in the program. First of all, we are talking about people 50 years and older, people of pre-retirement age, women on parental leave, unemployed women with preschool children, as well as certain categories of young people under the age of 35 inclusive. You can apply for retraining in popular professions on the website. The form of training, including online, is determined for each area of training. The service is available both for unemployed citizens and employees at risk of dismissal (when introducing part-time work, downtime, temporary suspension of work, granting leave without pay, carrying out measures to release employees). Educational organizations have the opportunity to look for employers who are ready to provide places for internships or internships. The system of online monitoring of graduates' employment is being implemented.

In this regard, it is impossible not to pay attention to the norms of the Labor Code of the Russian Federation regulating relations on vocational training and retraining. The rapid development of new technologies changes the content of the labor function, when some actions and operations exclude human participation, they are performed through artificial intelligence technologies. This entails a change in the qualification requirements for employees. The rules that additional professional training and advanced training are carried out at the discretion of the employer, and they will be mandatory only "in cases specified in the law, other regulatory legal acts, when this is a condition for performing certain types of activities" (Article 196 of the Labor Code of the Russian Federation) do not meet modern conditions. Apparently, it is necessary to change approaches, and to establish the obligation of employees to improve their qualifications, and the obligation of the employer to organize advanced training, additional professional training. The speed of the introduction of new technologies makes the need to acquire new skills that previously employees did not possess constant.

The use of artificial intelligence creates the problem of choosing between employees who are able to quickly adapt to artificial intelligence technologies, and employees who do not have this ability, who have difficulties in contacting and working together with robotics. The content of the concept of "business qualities" is expanding, new requirements for the applicant appear if the work involves contacts, interaction using artificial intelligence technologies, which should initially be notified when selecting an employee. Appropriate methods should be developed to determine the qualities of the applicant. When posting information on digital platforms (including non-governmental ones), it is necessary to formulate similar requirements for applicants for a workplace. It is desirable to reflect the definition of an employee's business qualities in such an expanded understanding in the Labor Code of the Russian Federation.

Digital technologies are being actively introduced in the activities of human resources services. Online interviews, testing, video interviews with job applicants and other selection technologies are common. Moreover, artificial intelligence is used at the stage of employment, when a potential employee is evaluated with the help of special computer programs and prospects for future work are determined. The robot conducts a preliminary survey and evaluation of candidates, and then the applicant for the job contacts an employee of the personnel service ^[7]. So far, labor law does not provide for norms governing the conduct of interviews with artificial intelligence. Apparently, the applicant should be warned about the use of such technology at the stage of employment. In the algorithms used to evaluate business qualities, there are discriminatory factors in non-state electronic databases of vacancies. It is rightly noted that the algorithm should be created taking into account legislative norms, the requirements of Article 64 of the Labor Code of the Russian Federation and employment legislation ^{[8, p. 69]}. The requirement of legislation on the evaluation of information posted on a Single digital platform (absence of signs of discrimination, incitement of ethnic hatred and other circumstances) should be fully applicable to non-governmental electronic databases of vacancies.

The use of artificial intelligence in employment relationships raises painful questions about collecting information about job applicants. The practice of collecting information through social networks, from CCTV cameras and other sources is discussed in the literature. This practice does not fully comply with the legislation. The right to privacy is violated, because information is collected about the age, gender, health, habits, interests, preferences of a person, etc.  At the same time, his consent is not sought. It is worth paying attention to the new rule of Article 10.1 of the Federal Law of the Russian Federation "On Personal Data" dated July 27, 2006 No. 152: silence or inaction of the subject of personal data cannot be considered consent to the processing of personal data authorized for distribution. Consent to the collection of data that is necessary for employment (Article 86 of the Labor Code of the Russian Federation) should be limited to the moment of making a decision on admission (or refusal of admission). All employers are required to notify Roskomnadzor about the processing of personal data (from September 1, 2022). It is alarming that, based on the information collected by artificial intelligence, a conclusion is drawn about the desirability or undesirability of hiring a particular person as "inconvenient" or problematic for the employer. In our opinion, it is impossible to leave the solution of such an important issue as hiring to artificial intelligence. It is possible to allow automated processing of questionnaires of applicants who have placed questionnaires in electronic databases, according to formal criteria, but the final decision on admission or refusal to apply for a job based on the results of interviews, interviews, etc. should be for a specialist person. Related to this is the question of the possibility to challenge the decision, about the subject of liability in case of harm. Artificial intelligence is not a subject of law, although at the theoretical level there is a discussion about the possibility of recognizing robots as subjects of rights. We agree with the opinion of scientists that it is too early to talk about this at this stage ^{[9, pp. 33-41],[10, pp. 5-10]}. While experience is being accumulated, practice is being formed (for example, challenging administrative fines imposed on the basis of CCTV recordings). Along with challenging the unjustified refusal in the Labor Code of the Russian Federation, it is necessary to provide for the possibility of judicial appeal of the decision taken during the automated processing of applicants' questionnaires. The answer must be given to the applicant in accordance with Article 64 of the Labor Code of the Russian Federation, since employment relations arise already when sending a resume to an advertised vacancy ^{[7, p. 69]}.

Certain risks for job seekers are created by the introduction of electronic document management by the employer (Articles 22.1–22.3 of the Labor Code of the Russian Federation). Citizens have different degrees of readiness for changes and there may be a misunderstanding between the applicant for a job and the employer (employees of personnel services) and abuse of the right by the employer. In addition to the guarantees existing in Article 64 of the Labor Code of the Russian Federation, new guarantees have been established for job applicants. According to part 8 of Article 22.2 of the Labor Code of the Russian Federation, a ban on refusal to accept a job due to the absence of an electronic signature from a person applying for a job is provided; a ban on refusal in the absence of the consent of the person being hired to interact with the employer through electronic document management. At first glance, this is strengthening the protection of job applicants, but practice shows that the stricter the bans, the more likely it is that employers will avoid them in every possible way.

Thus, it can be stated that in the field of employment, the legislation is not quite ready to respond to the changes taking place in connection with digitalization, and does not contain the necessary mechanisms for protecting people.  Failure to take measures may lead to a serious deterioration of the situation of employees in the near future.The solutions proposed in the article can be the subject of discussion and be useful for the legislator. The creation of a legal mechanism to protect applicants from new challenges and risks in a digital society is on the agenda.