Fair employment practices in the Metaverse

The way we work has undoubtedly changed, accelerated first by technological developments and then the COVID-19 pandemic. Remote or hybrid working is here to stay, and employers have taken note of these developments.

As the workplace continues to evolve, businesses and employers have begun to look towards the next destination – the Metaverse. It is anticipated that how we live our lives, including how we work, will shift towards the virtual space.

But with employment laws having been developed largely in the context of the physical office, how will we adapt to employment in the Metaverse? Should legal concepts such as workplace harassment, discrimination, and employee data protection be adapted?

Data protection

Data protection, a major concern in recent years, will only become more critical. Given its inter-connected nature, participation in the Metaverse is likely to involve the large-scale provision and collection of personal data, including new forms of biometric data. How will the protection of such data be adequately ensured?

The question is of particular concern for employers, who will have to address the protection of their employees' personal data while facilitating their work participation in the Metaverse. This would require a combination of technological safeguards, operational practices and tailored policies. Service agreements with Metaverse platform partners will need to be reviewed to ensure employee data is used and protected in accordance with personal data protection laws and used solely for specified and agreed purposes in the Metaverse. The current consent obtained from employees needs to be reviewed to ensure that such consent is drafted with adequate latitude and specificity to allow the use of such data for new purposes in the Metaverse.

The issue is further complicated by the state of data protection laws. As a relatively new feature in the legal landscape, data protection laws are in a constant state of development and will have to further adapt to the novel nature of information use models in the Metaverse. In Singapore, for example, the Personal Data Protection Act (and its Advisory Guidelines) sets out certain obligations for employers regarding their employees' data. How these obligations develop to fit the Metaverse should be closely observed. Meanwhile, employers should note that all existing data privacy principles are to be taken as applicable in the Metaverse as they are in the physical world. In that spirit, all Metaverse-related standard operating procedure documents, risk management checklists and compliance manuals should be drafted accordingly.

Harassment and misconduct

Workplace harassment continues to be an issue of concern and all employers have the responsibility to manage and avoid instances of harassment and misconduct by implementing clear policies. Employers can take comfort in the fact that the law and existing norms against harassment and misconduct can be, for the most part, applied to the Metaverse. At the root of it, harassment is harassment - whether the sexually-charged, unwanted, offensive statement is made around the traditional office cubicle or water-cooler, or in a virtual chatroom. Employers still have a duty to ensure that they provide a safe and harassment-free workplace, and to adopt a zero-tolerance approach to harassment in any form.

What is different in the Metaverse is that such instances of harassment, stalking and other forms of misconduct are often amplified, and as the saying goes, the internet never forgets. While physical harassment at the workplace remains an existing concern, such instances may be fleeting, made perhaps one-on-one, and usually not recorded. However, the virtual environment tends to amplify the adverse consequences of harassment and bullying.

For instance, micro-aggressions, retaliatory conduct and bullying are often expressed in work-group chats or forums whether on the company's internal communication systems or on third party platforms. The adverse effect on a work team's morale when the manager responds to a suggestion with an eye-roll emoji or a personal attack in a group chat is immediate and palpable. Quite apart from the instant and public humiliation faced by the team member, the record of such an action by the manager is kept on the chat and worse, may then be screen-shot and forwarded to countless other chat groups by snarky teammates enjoying their moment of schadenfreude. The affected employee's humiliation and public shaming would then ostensibly and arguably be not just within the group, but now amplified to many others, including those outside of the company. Toxic managers and bullies understand this amplification effect and sometimes deliberately choose to harass and bully their colleagues this way.

Experience has also shown that perpetrators are more likely to behave – or rather, misbehave – online in a manner that they may not in the real world, with the removal of social boundaries in their conduct. Given the rise in reports of online harassment and bullying, some countries including Singapore have extended the scope of regulation over harassment to include online offences.

With workplace interaction taking place more via avatar, chat or text, employers will have to review their definitions of harassment and draw up boundaries on what is acceptable and what is actionable based on these avenues for harassment.

Similar to the assessment of physical harassment, employers should always be guided by first principles of consent and appropriateness. Conduct that offends these principles in the real world should be treated no differently in the Metaverse.

Rajesh Sreenivasan is Head, Technology, Media & Telecommunications and Jonathan Yuen is Head, Employment & Benefits (Disputes), and Commercial Litigation at Rajah & Tann, Singapore.

Sreenivasan is leading a session on the ethics and public policy of metaverse design at TechLaw. Fest 2022, from 20-22 July 2022, organised by the Singapore Academy of Law, the Ministry of Law, and MP International.