This is the first time that a Spanish regulation has imposed on employers an obligation of algorithmic transparency and a duty of explainability regarding the functioning of the artificial intelligence algorithms they use to make decisions affecting working conditions and access to and retention of employment.
The presumption of an employment relationship, that is, of being considered an employee working “on behalf of another” (por cuenta ajena), established by law now extends to the sphere of digital platforms. Specifically, it provides that:
“the activity of persons who provide paid services consisting of the delivery or distribution of any consumer product or goods, on behalf of employers who exercise the business powers of organization, direction and control directly, indirectly or implicitly, through the algorithmic management of the service or of the working conditions, by means of a digital platform, shall be presumed to fall within the scope of this law.”
On May 12, 2021, the Boletín Oficial del Estado (Spain’s Official State Gazette) published Real Decreto-ley 9/2021, of May 11 (Royal Decree-Law 9/2021), which seeks to guarantee the labor rights of persons engaged in delivery work in the sphere of digital platforms, with effect from August 12, 2021.
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