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Italy: Ministry of Labour issues circular on Transparency Decree, clarifies scope of information obligations

The Ministry of Labour published, on 20 September 2022, Circular No. 19 in relation to Legislative Decree No. 104 of 27 June 2022 ('the Transparency Decree'), which entered into force on 13 August 2022. In particular, Section 3 of the circular clarifies the scope of the additional information obligations pursuant to Article 4(b) of the Transparency Decree, which inserted Article 1-bis in the existing Legislative Decree No. 152 of 26 May 1997 ('Legislative Decree 152/1997'). More in detail, the circular points out that Article 1-bis of Legislative Decree 152/1997 covers two distinct instances where the employer uses automated decision-making or monitoring systems, namely when the systems are:

  • aimed at implementing a decision-making process capable of affecting the employment relationship; or
  • are incidental to the supervision, assessment, performance, and fulfilment of the contractual obligations of employees.

Notably, with regards to automated decision-making systems capable of affecting the employment relationship, among other things, the circular points out, on the one hand, that the obligation to provide information also exists in the case of merely incidental human intervention. On the other hand, the circular excludes the existence of such obligation in the case, for instance, of automated systems responsible for detecting employees' attendance, whose use does not result in a fully automated activity aimed at an employer's decision.

Moreover, with regards to the supervision, assessment, performance, and fulfilment of contractual obligations, the circular notes that the employer is obliged to inform the employee of the use of such automated systems, and notes that such information obligation also applies in relation to the use of automated decision-making or monitoring systems integrated into the tools used by an employee to perform their work.

You can read the announcement here and the circular here, both only available in Italian.