Virtual groping comes under sex-offence laws

A briefing note by McCann FitzGerald lawyers has flagged fresh HR issues that may arise as a result of the shift to the ‘metaverse’ – the immersive real-time virtual 3D world of work that is emerging with technological advances.

There is a growing belief that the ‘metaverse’ will be key in enabling both employers and employees to achieve balance, but that it will also involve a fundamental change in how we work, the firm’s employment-law specialists believe.

Metaverse users communicate in a simulated environment, usually by use of a headset, through interaction with figures known as ‘avatars’.

Microsoft Teams will introduce 3D virtual avatars and environments this year.

This creates virtual team-building and collaboration opportunities, irrespective of location, but HR functions should be prepared accordingly, the lawyers believe.

Avatars

The very act of employees creating an avatar may raise issues of discrimination (as well as diversity and inclusion), particularly if users seek to adopt different genders, races, and characteristics to their own, the McCann FitzGerald lawyers point out.

There is also the question of whether an office dress-code policy will apply to avatars.

What happens if a worker ‘tries on’ different skin colours, and could this even be encouraged as part of the growing trend of ‘blind recruitment’, the lawyers ask. 

What happens if an employee chooses to use their avatar to ‘come out’ as transgender?

Bosses may wish to consider policies requiring realistic avatars that are physically similar to the relevant worker in the workplace.

HR may also seek to prevent employees from porting such avatars from their professional to their personal lives.

Metaverse misconduct

Workers must be told that every real-world HR policy will be equally applicable when in the metaverse – including disciplinary or misconduct procedures.

Because avatars are not autonomous, but are controlled by employees, it should be impressed upon employees that they will be responsible for their avatar’s actions, the lawyers point out.

Under existing law, neither harassment nor sexual harassment are defined to require physical contact, with the key definition being ‘unwanted conduct’. 

As such, metaverse behaviour could amount to harassment, or even sexual harassment. 

Metaverse beta testers have complained about being groped in a virtual meeting space, McCann FitzGerald points out.

A wheelchair-bound avatar, where the worker does use one in the real world, is a protected characteristic under existing law in the event of discriminatory treatment.

Novel defences may also be put forward by workers facing allegations of misconduct, with the blame put on a slipped cursor, or connection difficulties.

Facebook’s parent company, Meta, has sought to deter employees from committing such offences, including through the creation of a virtual boundary between each avatar to prevent any form of sexual harassment on its platform.

Data

Monitoring employees may be particularly challenging, given the difficulty in ascertaining identities, with employers relying on ‘user’ confirmation.

Hackers may find metaverse access easier if it is unclear who is behind a given avatar.

Employers should also closely scrutinise the terms set out by third-party contractors supplying such technology, the McCann FitzGerald lawyers suggest, particularly in relation to confidential information, of which bosses must retain ownership.

Other issues 

Clarity is also needed in how employees record metaverse working time in respect of the ‘right to disconnect’, particularly outside of core working hours.

Working-time rules will still apply as normal.

Bosses should also take steps to address any health-and-safety risks arising from the equipment used to access the metaverse, and carry out risk assessments, while also accommodating employees’ disabilities.

An open question relates to which laws will apply in the metaverse – those of the country where the employee, the company, or the IT server is based?

The McCann FitzGerald lawyers expect the topic to be tested before long at the Workplace Relations Commission.