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What challenges might the metaverse bring to work?

Linda Hynes from Lewis Silkin Ireland explores some of the legal issues that could arise if the future of work is in the metaverse.

The Metaverse is a virtual world, which uses augmented and virtual reality (VR), where people can meet and interact with each other. For many employers, the first experience may come from using virtual reality tools to organize conferences and events.

Microsoft has announced that it will be adding avatars and 3D virtual environments to Teams this year, so it could soon be coming to a workplace near you. Eventually, employees could spend more time doing their jobs in a virtual world, which could be another crucial change in the workplace, following other changes brought about by the Covid-19 pandemic.

The metaverse offers many benefits, for example the ability to work remotely in a more connected way with colleagues, but it also raises a range of new issues and challenges related to Irish employment law.

Diversity, inclusion and avatar design

You need an avatar to participate in the metaverse. In the world of online gaming, the choice of a character or an avatar is mainly a matter of digital evasion.

When the metaverse hits workplaces, people are more likely to choose more photorealistic avatars – ones that look like them, or at least the way they perceive themselves. Avatars, however, can create diversity and inclusion issues.

A first problem for employers could be offensive jokes or comments about people’s choice of avatar, especially given the initial novelty of virtual reality in the workplace. This could fall under the category of bullying, harassment or sexual harassment under Irish equality law.

There could also be disputes over avatars that deliberately poke fun at others, such as an avatar that looks like a public figure but has certain accented traits.

Irish employment law would allow employers to sanction employees for such inappropriate behavior, although human resources departments may need to develop and enforce guidelines regarding avatars and ways of working in the metaverse, such as this happened with the use of social media when it became an everyday part of the workplace.

Irish Equality Act currently recognizes nine protected grounds against which a person should not be discriminated against. These include gender, disability, race and age. Some of these patterns might be visible in real life and some might not, but the metaverse might disrupt that.

Which protected lands will be visible and which will not in the new VR world? Oculus says it’s looking at the subtle differences and stressing how customizable its avatars will be.

The invitation to choose an avatar that reflects your reality raises a series of diversity issues. Will some employees have the benefit of choosing avatars that express their true gender identity? Will others find ways to show characteristics they can’t easily show in real life, like autism?

Will others be frustrated at not being able to select an avatar that represents their combination of protected characteristics? When would it be acceptable for employees to “try on” protected features that they don’t have?

What about recruitment exercises that use virtual reality? Are these issues that employers will need to regulate and what will this mean, for example, for unconscious bias, a problem that already exists in the workplace?

Research shows that women are more likely to experience motion sickness when using virtual reality. How will this be handled by employers? If virtual reality as part of the working day is required by the employer, does this discriminate against women? Could it widen the gender gap in the workplace if female employees don’t want to engage in virtual reality because it makes them sick?

Online Harassment Applies to the Metaverse

Irish employment equality legislation gives a broad definition of sexual harassment, which is any form of unwanted verbal, non-verbal or physical behavior of a sexual nature. Harassment related to any of the protected grounds is also prohibited, as is any form of unwanted conduct related to any of the discriminatory grounds.

In both sexual harassment and stalking, conduct is defined as having the purpose or effect of undermining a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

This could include the workplace in the metaverse. Employers can be held vicariously liable for acts of bullying, harassment and discrimination of employees committed by employees on social media sites, so the same would extend to the metaverse. Appropriate training and measures to reduce the risk of bullying and harassment in the Metaverse will need to be considered.

Metaverse Misconduct

Many types of misconduct in the Metaverse will be covered by existing employer policies and Irish employment law, but the policies may need to be amended to make it clear that working in the Metaverse is still a workplace.

For example, colleagues who abuse each other in a virtual environment would be subject to normal disciplinary rules. Unfair dismissal law will apply in the same way as it does now and conduct in the virtual workplace will be investigated and duly prosecuted, as it does for “real” work, although investigating the virtual reality environment can present logistical challenges for employers.

Will new types of misconduct emerge in the metaverse? For example, if the metaverse is going to include non-player characters (NPCs) like the online game world, i.e. characters not controlled by an employee, being rude to a virtual assistant NPC will count as an act of misconduct, or attacking a virtual assistant NPC is an act of harassment?

Can employees be disciplined for this behavior? Does this type of behavior go against the culture and values ​​of the organization?

Other metaverse issues

The metaverse raises a host of other workplace issues that may not be addressed by existing employment laws.

Jurisdictional Issues: People in the virtual world can be anywhere in the real world, so what employment laws will apply?

Confidential information and security risks: In the “anyone could be anyone” world of the metaverse, will there be more hacks or corporate espionage?

Health and security: Can you wear a VR headset all day or will there be health and safety risks? Should the risk of cyberbullying in the metaverse be considered by employers in their risk assessments under health and safety legislation?

Property in the metaverse: Will the non-competition and intellectual property clauses need to be updated? Could metaverse providers access or use company information that is shared within their environment?

Employment status and working time: As new ways of working emerge, which will be defined as working relationships? If you are online as an avatar, does this working time have to be recorded and monitored? Working time obligations are already in conflict with the remote and flexible work models that have emerged since the start of the Covid-19 pandemic, how will they cope with the metaverse?

Be ready for the avatar

While we won’t see the labor relations claims brought by Warlock999 naming Bigboss1 as a defendant for some time, it could happen in the future. Previously, employers and employment dispute resolution forums and tribunals had to catch up on employees’ use of social media platforms.

The law will no doubt also have to tackle the range of new issues that will come with working in the metaverse. A VR workplace could offer some exciting opportunities, but employers will need to be aware of the pros and cons when their employee avatars come together in the future.

By Linda Hynes

Linda Hynes is a partner at Lewis Silkin Ireland in the employment, immigration and compensation division.

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