Employment and Labor Laws
The metaverse offers the opportunity for employers to provide an immersive remote working set up, using VR and AR technologies. This would be a significant development from the current working environment of in-person or remote workplaces and meetings, to a 3D virtual work space with the use of avatars.
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Employment and Labor Laws
The metaverse offers the opportunity for employers to provide an immersive remote working set up, using VR and AR technologies. This would be a significant development from the current working environment of in-person or remote workplaces and meetings, to a 3D virtual work space with the use of avatars.
The metaverse brings many advantages in offering a collaborative, remote-working experience for employees, but it also comes with a number of, often novel, challenges. As the development of the use of such technology in the workplace grows, there is a rising focus on identifying and addressing those challenges. For example, it will be essential that employers adopt this technology in a way that aligns with their culture and values, including their diversity and inclusion policies and objectives.
Whilst the impacts of the metaverse on employment law remain unclear, rest assured it will not become Grand Theft Auto. Employers and employees alike will need to think about their avatars in the metaverse as extensions of a person’s real-life self, as their actions in the metaverse may have legal implications that impact individuals after they have logged off.
Discrimination, diversity and inclusion
Diversity of avatars
Game developers have been creating virtual worlds for many years. In many cases, the same developers or their teams are now helping to develop the metaverse for the workplace, and one of the ways they are doing this is by using avatar concepts from existing video games. A key concern is whether the narrow range of avatars used in any virtual workplace can be sufficiently diverse in terms of their characteristics to avoid creating issues around diversity and inclusion, including implying stereotypical assumptions, or failing to allow users to create avatars that genuinely represent their identity.
Lack of diversity
The gaming world has historically attracted regular reports to the media over issues related to diversity and inclusion – from an alleged lack of diversity in the industry’s talent pool of developers to poor character representation within video games themselves. For example, there has often been a tendency to create over-sexualized female characters, underrepresent certain groups or represent gender in a limited, binary or stereotypical way. In September 2021, a report by Diamond Lobby cited statistics regarding the lack of diversity in video games, with over 60% of all characters being white and nearly 80% of main characters being male. The report further found that nearly 55% of the male characters were white, while only 8% of main characters were non-white females. When considered against estimates of the global white population being in the region of 8 to 15%, the findings by Diamond Lobby are even more compelling.
Improving stereotypical representations
It is clear therefore that, while representation in virtual games has improved significantly compared to two decades ago, issues continue to persist today, including ongoing reports of offensive and stereotypical representations in the gaming industry. But there are positive signs of progress. The industry has recognized the need to improve how gaming characters are presented as well as to address diversity and inclusion across the industry as a whole, particularly in terms of representation of women, disabled people, individuals from the LGBT+ community or diverse ethnic backgrounds. This is evidenced by the ‘Raise the Game’ initiative launched in 2020 by the Association for UK Interactive Entertainment, ‘Ukie’ – a diversity pledge aiming to sign up companies in the industry to improve diversity and inclusion in video games. As Ukie’s CEO, Dr Jo Twist OBE, has commented, ‘“Diversity isn’t a nicety; it’s a necessity if the industry is going to grow, thrive and truly reflect the tens of millions of people that play games every day in this country”.
Representing diversity effectively
While there is still significant work to be done, the global workplace has come a long way from a diversity perspective, often encouraged by the introduction and development of legislation in many countries globally; the influence of different stakeholders and the resulting focus that many businesses have given to diversity and inclusion, particularly over the last five years. While there is the opportunity to ensure that the metaverse for the workplace represents diversity effectively, there is also a danger that historic issues from the gaming world are unconsciously built into the virtual workplace. As there are employers already implementing the metaverse, this is a concern which needs to be prioritized. Employers will also be mindful that public opinion regarding (and tolerance of) discrimination has changed in recent years and is increasingly influential over reputation.
Metaverse in the recruitment environment
One particular area of concern is the use of the metaverse in the recruitment environment. Many employers will have worked hard to reduce and, if at all possible, eliminate discrimination and unconscious bias from their recruitment processes. As businesses start to consider the use of the metaverse for recruitment, care will need to be taken to ensure that the historic diversity issues that may have carried across from the gaming industry do not creep in. Addressing that may start earlier in the process than the actual build of the virtual workplace, for example ensuring that the appointed suppliers comply with diversity standards in their own workforces and in the teams assigned to work on the company’s projects.
Freedom to express?
Questions and novel issues arise as to whether workplace metaverse systems should allow employees to express themselves through their avatars in a way of their choosing, or whether the choice should be restricted. For example, must the choice of avatar accurately align with their characteristics and identity? Although having a wider choice has the potential advantage of removing some of the scope for discrimination based on an individual’s real world visually-apparent characteristics, it also has the potential to add further complexity to initiatives put in place to promote workplace diversity and inclusion. An employee’s choice of avatar characteristics, where such characteristics do not represent their characteristics in the real world, also has the potential to cause offence. Cultural appropriation is just one example.
Careful consideration
Diversity and inclusion should be at the forefront when implementing this new working environment to ensure that the metaverse is inclusive and reflective of all employees, irrespective of their personal characteristics and background. Giving careful consideration to diversity and inclusion in this way will help to ensure that the introduction of this technology does not inadvertently undo the progress that has been made in recent years.
Misconduct and harassment
Inappropriate conduct
There have already been reports of inappropriate conduct within virtual reality platforms that would amount to gross misconduct and, potentially, result in criminal charges, had it occurred in the real world. Allegations of sexual and racial harassment, sexual assault, homophobic slurs and gun violence are just some of the examples that have been seen.
Safe zone
In response, Meta has put in place a ‘safe zone’ which allows users to activate a protective bubble where no one is able to interact with them. There are also processes available to block and report users. But all of these safeguards require action by employees to avail themselves of protection. In many jurisdictions, including the UK, employers are under an obligation to provide a safe working environment and positive duties to protect against workplace harassment. Employers will therefore need to ensure that suitable protections are incorporated into the workplace system.
Employer monitoring
As a minimum, employers will need to have suitable systems in place for monitoring activities taking place in the metaverse and ensure that existing policies on discipline, employee conduct, harassment and equal opportunities cover inappropriate behaviors. The potential for higher levels and/or more serious misconduct in the metaverse is significant, including due to the possibility of perpetrators masking their identity behind an avatar or believing that they cannot be held responsible for events that take place in the metaverse. Clear communication will be key to ensuring that policies that apply to the metaverse are understood and adhered to.
Privacy and surveillance
Employers will need to consider adapting privacy and internal compliance policies that deal with data protection, re-thinking working time and what it means to be ‘online’ as an avatar and how surveillance can be limited in the metaverse.
Centralized identity providers
Zuckerberg has been expediting the idea of the metaverse to mainstream consciousness, yet this should not detract from the reality that Meta and similar organizations are centralized identity providers. This means the digital identities and data contents that users generated on their platforms are stored in centralized servers, where users have no control over them. This further means that such companies or enterprises are also the technology providers and decision-makers, as well as data owners concurrently. These digital platform companies, as seen over the past 10 years or so, are on many occasions poor custodians of user interests and personal data.
Data protection issues
All areas of data protection are at risk through the use of the metaverse, as personal information protected by data protection laws, including the EU GDPR laws, are placed into new systems of data collection and information storage that is relatively new and untested.
Special category data under GDPR is of particular concern in an employment context. Information which is particularly sensitive to the individual, and the subsequent risk of this information being leaked to the public, creates a danger for businesses and employees alike.
In addition to data retention, security issues also arise in real time. For example, an office meeting that takes place through the metaverse may disclose sensitive information to the individual – how can we be certain that uninvited parties are not listening in or recording the exchange?
Health and safety
There are potential health and safety issues – for example, the metaverse may require the use of a headset to be worn all day long, or there may also be mental health implications in a 3D virtual work space. Harmful effects of prolonged exposure to screentime are also well-documented.
Further to this, statistics published in December 2021 from the UK Health and Safety Executive revealed that there were 451,000 new cases of work related stress, depression and anxiety in 2020/21 and a high percentage of these cases were caused or made worse by remote working. Feelings of isolation may be compounded by the use of the metaverse, due to the lack of social interaction in the real world.
Therefore, employers may need to consider new safety guidance to provide for this.
“[in the UK] there were 451,000 new cases of work related stress, depression and anxiety in 2020/21”
Territorial Jurisdiction
The physical world of work is regulated by national legal frameworks. In California, for example, workers can be fired “at will”, while in the Netherlands, employees generally cannot be sacked without approval from the court or Dutch employment agency. In the metaverse, however, the national employment law that applies is not immediately obvious.
What legal framework applies to the metaverse?
So far, no one has decided what legal framework should apply to a decentralized digital workspace in which workers may be itinerant and geographically disconnected from each other and the company they work for. It may be the law of the country where the company owning the platform is based, the law of the country where the servers are based, the place where the employee is physically located in the real world, the place where the work is habitually carried out, or even based on the closeness of connection with a particular country considering a number of different factors.
Therefore, employers may need to have a heightened awareness of the actions they make regarding employees in the metaverse, due to the vast differences and intricacies between nations and their respective employment laws.
Working time
When will working time begin and end for employees when they are present in the metaverse? Will they be “working” for the purposes of accruing national minimum wage and holiday entitlement when simply present in the metaverse? How should working time be monitored and recorded and is there any legal obligation to do so? How will these principles change across differing laws and jurisdictions?
Defining the beginning and ending of “work”
Employers will need to assess when an individual is considered to be working whilst logged into their avatar on the metaverse, and when they have “left” the office and are using their avatar for leisurely activities. This will be incredibly important when considering when employees are accruing national minimum wage and holiday entitlement.
Although not enacted specifically with the metaverse in mind, many countries have started to put in place laws to ensure employees can switch off from work out of hours, which is particularly important as remote and hybrid working continues to blur the line between home and work life for many people. With working within the metaverse having the potential to blur that line further, the importance of such laws is likely to continue to grow.
The right to disconnect
Belgium, France, Italy and Spain are just some of the countries that have started to protect employees by establishing a right to disconnect (enabling employees to disconnect from work during non-working hours). In many countries where there are such laws, these typically fall short of guaranteeing a right to disconnect and, instead, encourage employers to agree appropriate disconnection policies with employee representatives. For example in France, where the statutory right to disconnect is not defined and therefore gives employers the freedom to negotiate the meaning with their employees. Such approach gives wide scope to incorporate metaverse ways of working within the scope of protection.
Even in those jurisdictions where there are currently no right to disconnect laws, there will be other restrictions on working time that employers will need to take into consideration when allowing employees to work in the metaverse, including regulations on maximum working hours and rest periods.
Monitoring of working time
Consideration will also need to be given to how best to monitor working time in the metaverse. Wider employee relations considerations, including obligations towards employee representative bodies, should not be overlooked as part of such evaluation. The implementation of new technology to monitor working time (or, in some jurisdictions, any technology solutions that impact the workforce, including the use of the metaverse within a workplace) will often trigger such obligations towards employee representatives. For example, in Germany, any proposal to use technology that can monitor working time, behavior or performance will trigger an obligation to undertake a process of co-determination with the Works Council prior to that technology being implemented.
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Hannah Wilkins
Click on the topics of interest available below to explore the legal issues arising in the metaverse. We will be releasing further reading on a variety of topics periodically.
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