Working in the Metaverse: a New Frontier
Last week at the American Bar Association’s National Symposium on Technology in the Workplace & Law, I attended a thought-provoking discussion about what the future of work might look like in the “metaverse.” While the word connotes a dystopian, sci-fi concept or a Mark Zuckerberg pipe dream, the metaverse is real, it’s here, and could become a common tool for remote work, perhaps in the not so distant future.
If you have kids somewhere between kindergarten and college age, you’re probably familiar with Roblox or Fortnite. These are online games where players can navigate digital worlds through a customized avatar, create content, play, meet, interact and, yes, spend money. Whereas I used to get allowance to go to Claire’s Boutique or the movies, my kids barter and beg for “Robux,” “V-Bux” and other forms of digital currencies to buy “skins” and other digital in-game merchandise. I’m embarrassed to say that on a cold, winter, Chicago weekend, it would not be unheard of for my 11 year old to stay up late waiting for a new Fortnite “release,” or to spend hours on FaceTime with his friends playing online.
Why am I talking about gaming (and outing my parental shortcomings) in a blog about employment law? Because kids today are spending a significant amount of their social and play time during their formative years in digital “meta” worlds. They will be entering the workforce in the next decade or two, and are already comfortable and familiar with navigating this technology. The metaverse isn’t a novelty or a theoretical concept to that generation. At the same time, tech giants like Meta and Microsoft and consultants like Deloitte and Accenture are actively developing fully functional “metaverse” offices and workspaces using Virtual Reality (“VR”) and Augmented Reality (“AR”) devices. While there is still a long way to go to develop and refine the technology, VR and AR will inevitably become more accessible and functional over time.
To those who think VR headsets are only for kids, tech geeks, or part of some distant sci-fi future, think about the iPhone’s initial release in 2007 (that’s right, about 15 years ago). Back then, I remember being interested in the iPhone but also thinking it seemed prohibitively expensive and unnecessary. After all, I had a Blackberry! What more could one need? Fast forward just a few years and I would literally be lost and could not function without that Apple device in my pocket.
What I’m getting at is, none of us should be surprised if over the next several years it becomes more and more commonplace for employers to offer robust virtual office environments that incorporate metaverse concepts in order to expand and enhance the remote work experience. So what the heck is the “metaverse” anyway? What would a “meta” office environment look like? What does this mean for employment lawyers? Let’s examine these questions.
First, what exactly is “the metaverse”?
The meaning of “metaverse” is evolving and there is no singular definition. Whether there ever will be a definitive meaning of the term remains to be seen. In ancient Greek, the word “meta” means “beyond” or “transcendent.” “Verse” is shorthand for universe. Oxfords English Dictionary offers a fairly simple, yet comprehensive definition of metaverse as “a virtual reality space in which users can interact with a computer-generated environment and other users.” JPMorgan describes the metaverse as “a seamless convergence of our physical and digital lives, creating a unified, virtual community where we can work, play, relax, transact and socialize ….” According to wired.com, “the metaverse is the future of the internet. Or it’s a video game. Or maybe it’s a deeply uncomfortable, worse version of Zoom? It’s hard to say.” There are already numerous metaverse platforms such as the aforementioned Roblox and Fortnite, Meta/Facebook Horizon Worlds, Sandbox, Decentraland, the list goes on. Users actively inhabit these platforms for various purposes like gaming, socializing, shopping, entertainment, and even buying and selling digital land and other assets. Most of these metaverse worlds require users to trade in platform-specific digital currencies, many of which are blockchain-based crypto-currencies.
What would the future of work look like in the metaverse?
It’s Monday morning. Kids are off to school, coffee cup in hand. Your “commute” consists of a 30 second walk from the kitchen to your home office. You sit down, don your VR headset, and are instantly transported to a virtual workspace complete with a digital monitor, keyboard and mouse. Your hologram avatar looks exactly like you (except it is dressed in business casual whereas the real you is wearing sweatpants), has your exact voice, and can mimic your exact facial expressions. A hologram of your coworker passes by the “door” to your “office” and stops to chat. Mid-morning, you attend a “meeting” in a digital conference room populated by holograms of your coworkers who live all over the world. One of your colleagues leads a roundtable strategy discussion using 3-D visual aids. You and your coworkers can contribute to the discussion by drawing modifications and writing ideas and proposals on a virtual white board. You notice one of your colleagues looks kind of down at the meeting. You ask her to grab a virtual cup of coffee in the virtual break-room after the meeting so you can offer a listening ear and cheer her up. It turns out her dog died the day before, and that’s why she seemed sat at the meeting. At the end of the day you take off your headset and proceed with the rest of your day and evening (carpool, dinner, whatever the case may be). This is what the future of work might look like as envisioned by tech companies developing metaverse platforms for work.
The concept of working in the metaverse, while not as widespread as some of the other uses, is not purely theoretical. Meta has developed “Quest for Business,” a suite of virtual reality applications that can be navigated using its Oculus technology and are designed for businesses that allow coworkers to collaborate and access productivity apps, account management features, and the like. Microsoft has released a meta platform for business known as “Microsoft Mesh.” As touted by Microsoft, Mesh “enables presence and shared experiences from anywhere - on any device - through mixed reality applications.”
Consultants like Deloitte and Accenture have adopted Meta’s and Microsoft’s technology for business use and are simultaneously using it and marketing its benefits to their customers. Indeed, pre-pandemic Accenture built an entirely virtual campus known as the “Nth Floor” and, during the pandemic, used it to onboard thousands of employees from literally all over the world. Accenture also created “digital twins” of many of its physical offices, from India, to Europe, to the United States where people can, in theory, meet, collaborate, undergo training, and attend company-wide events.
Deloitte recently unveiled its “Unlimited Reality” immersive experience platform which it hopes will enable companies to build virtual spaces for their customers, partners and employees. According to the consulting giant, it can help companies increase employee performance, offer customized technical training from a greater distance at lower costs, replicate hands-on training from remote environments, and reduce workers’ error rates, all through the magic of the metaverse.
The potential benefits of utilizing metaverse technology for work purposes are many. Companies can hold virtual job fairs and interviews worldwide without having to send recruiters and hiring managers into the world. Employers can onboard employees and train their workforce. Indeed, immersive augmented and virtual reality training programs could potentially be more effective and less costly. For hazardous occupations in particular, the use of virtual training modules could reduce the risk of injuries both during the training process and on the job. Surgeons can be trained more effectively and safely using virtual patients.
And, of course, the use of virtual reality for collaboration and meeting spaces can significantly enhance the remote work experience which much of the workforce has become accustomed to during the pandemic and its aftermath. Creating and using “meta” office environments could potentially resolve some of the tension that exists between wanting to give employees the flexibility to work remotely and the need for in-person collaboration, mentorship and connection. The metaverse can theoretically bring employees together from opposite sides of the country, or even the world, and foster more meaningful collaboration. Employees would save money and time on travel and commuting. Companies can save on real estate, training and theoretically (according to Deloitte and Accenture, at least) workers compensation and turnover costs.
The potential benefits of using meta technology for work are huge, but there are functional limitations as the technology exists in its current form. Perhaps the biggest logistical barrier to adoption is the accessibility of virtual reality and augmented reality devices which remain scarce, expensive, and limited in functionality. On the latter point, currently, most meta platforms are navigated through the use of cartoonish digital avatars which may be a semi-decent proxy, but cannot fully replace in-person interaction. Indeed, on Meta’s Horizon platform, the avatars appear, not as living breathing humans who can convey non-verbal cues, but as cartoon heads sitting atop floating, legless torsos. Microsoft Mesh also functions primarily through the use of avatars. Microsoft is developing “holoportation” technology, but the ability to interact with a fully formed hologram capable of displaying human emotion and other social cues a la Star Wars is still pretty far off.
So, what does this mean from an employment law standpoint?
Meta workplaces are still relatively new and, as tends to be the case with new tech, the law has not caught up. Adding complexity to the situation is the fact that it is unclear where, if anywhere, the metaverse actually is. If a “meta” work environment transcends physical space, does that mean employers are not bound by jurisdiction-specific laws? I think not. Although the office might be virtual, the individuals behind the digital avatars are real (for the most part, the implications of ChatGPT “personas” are an entirely separate blog entry). Employers should assume, at least for now, that existing employment laws where employees are actually situated will govern meta workplace behavior even if the workplace is not tied to a physical location.
A useful analogy can be found in the recent proliferation of artificial intelligence (“AI”) tools to make employment selection decisions. Legislators on the local, state and federal level are actively working to develop parameters regulating the use of this type of technology. However, while laws specifically governing AI decisionmaking in employment are just beginning to emerge, federal agencies such as the EEOC (in conjunction with the FTC and CFPB) have made it clear that they intend to use existing laws to protect the public from discrimination and other risks associated with their use. Very recently, in a statement issued on April 25, 2023, EEOC Chair Charlotte Burrows emphasized that “new technologies can’t be used in ways that dodge the law.” This is an important consideration to keep in mind as employers consider expanding their remote work programs to metaverse technologies.
Employers also need to be cognizant of local and state employment laws. During the pandemic it became apparent that it is critical for employers to understand where their remote employees are located and ensure compliance with local and state regulations wherever they are situated. Local law can vary significantly from jurisdiction to jurisdiction, and can be more restrictive than federal standards, particularly in places like New York, California and Illinois. Furthermore, to the extent that employers would like to leverage meta technology to break down recruitment and operational barriers on a global scale, they must become familiar with international employment and privacy laws and regulations that apply to the use of workers abroad.
Below is a high level list of the legal considerations for employers to keep in mind as they explore “meta” options:
Privacy Laws & Regulations
Virtual and augmented reality interfaces allow for online collection and use of extensive amounts of sensitive and personal data. Very concerning are the implications for biometric privacy. VR headsets can track users’ real life facial and body movements in order to make the virtual experience more realistic. Likewise, full-body haptic suits such as Teslasuit can record and track body position and movements to create a digital representation of the user, or monitor and provide health and performance data analysis.
Currently there is no comprehensive federal law regulating biometrics, however bills have been proposed. Several states have biometric privacy laws that would apply to the use of any VR/AR technology that tracks, captures, collects, retains, stores or otherwise uses such information. The Illinois Biometric Information Privacy Act (“BIPA”) is the most widely used and known of such statutes, and it packs a mean punch. BIPA imposes penalties and fines upon any company, including employers, that improperly capture, collect, store, disclose or otherwise use individuals’ biometric information without first disclosing the use and obtaining voluntary consent to do so. The law provides for automatic damages of $1,000 per negligent violation and $5,000 per intentional or reckless violation. Recently, the Illinois Supreme Court held that a separate BIPA claim accrues each time the individual scans his or her biometric identifier (i.e. fingerprint) and, thus, a separate set of statutory damages can be awarded for each scan. In a scenario where employees are using, for example, virtual reality headsets that are constantly tracking eye movements and utilizing facial recognition technology to allow the individual to navigate a virtual office environment, employers must ensure compliance with BIPA’s notice and consent requirements to avoid catastrophic liability.
Abroad, GDPR and similar regulations give individuals much stronger privacy rights than exist in the U.S. Given the lack of clarity around “where” the metaverse is and what law applies, employers who utilize such technology to enable their employees to “work” in the metaverse should endeavor to have a strong understanding of what data is collected, for what purpose and what happens to the data once it is collected. It is also critical to understand what laws potentially apply to the collection, storage and use of personal data and to ensure compliance with the most restrictive of applicable regulations.
Discrimination & Harassment
As alluded to above, existing anti-discrimination statutes undoubtedly govern employment decisions and workplace behavior that occurs in meta workspaces.
There are interesting issues surrounding bias and discrimination in a world where coworkers interact with each other exclusively in a meta setting through the use of customizable avatars and “skins.” This could facilitate greater inclusivity by, for example, allowing transgender or gender fluid employees to present in accordance with their gender identity. The U.S. Supreme Court has said that in a “real” workplace, it would violate Title VII’s prohibition on sex discrimination if an employer fired an employee because that person was identified as male at birth but used feminine pronouns and identified as a female in their daily life. But what if someone who identifies as a cis-white male in their “real” life chooses to present in a metaverse work environment as a female person of color? Is that person legally protected in the categories presented by their avatar, or by their real life characteristics? And how can an employer verify whether someone is presenting in avatar form consistent with how they actually identify in real life? In the case of the cis-white male who presents differently in a meta workplace, is that person actually engaging in harassing behavior by misappropriating a culture that does not belong to him? Certainly, if a white person showed up to a physical office in blackface that would be severe enough to create a racially hostile work environment and would be grounds for termination. These are complicated questions that employers, regulators and courts will have to grapple with. At a minimum, however, “meta” employers should be careful to update policies to contemplate these types of situations and implement guidelines around the use of avatars.
Digital harassment is already a prevalent occurrence in large part because harassers can obscure their identity online and may be emboldened to say things they may not otherwise feel comfortable saying to others in person. Indeed, there have been reported instances of sexual harassment and assault in the metaverse in the gaming context through simulated groping. Some forms of VR technology can actually enable users to cause others to feel physical sensations through the use of haptic technology. The Teslasuit, which is a full body VR suit, can provide haptic feedback using “electro muscle stimulation” and “transcutaneous electrical nerve simulation” to “stimulate a range of real-life feelings and sensations.” The use of this type of device could make sexual harassment and assault even easier to perpetrate in the metaverse than using other digital tools like text or social media.
In the Meta platform, users can create virtual “personal boundaries” and create “safe zones” around themselves to defend against would-be harassers. At work, however, individuals do not necessarily have the option to remove themselves from a situation or erect boundaries because they have to do their job and may be required to collaborate directly with coworkers. Employers looking to create meta workspaces should collaborate with the developer/vendor to create virtual “safe spaces” and other digital means to prevent and report harassment.
Disability & Access
Employers should also be wary of creating positions that exist solely in a metaverse environment because of current limitations on access to and useability of the technology. Creating exclusively “meta” jobs could weed out candidates who do not have adequate access to technology and bandwidth (and who disproportionately tend to be people of color) and/or older workers who may be slower to adopt. Any implementation of technology that amounts to a condition of employment should be reviewed for disparate impact on protected groups.
Expanding the workplace into the metaverse also presents new disability accommodation challenges. For some, the ability to use VR technology can enable disabled workers to perform their jobs. In their existing form, however, metaverse platforms have not yet proven to be inclusive of vision impaired and hearing-impaired individuals, many of whom are accommodated through the use of screen readers or closed captioning technology in their daily work. Using VR and/or AR devices and spending significant amounts of time in a digital, immersive space could also be difficult for workers who have motor dexterity limitations, vertigo, epilepsy or sensory processing disorders.
Wage & Hour Laws
In a “metaverse” environment where the lines between work and play are blurred, employers must exercise heightened vigilance to monitor off-the-clock work. This could get tricky, particularly for workers in non-traditional influencer or event planner type jobs. As the definition of “work” itself and new meta “jobs” emerge, it may become more difficult to differentiate between work and non-work. Accordingly, it is important for employers to define working time, track work actually performed in the metaverse and establish clear timekeeping procedures and rules.
Allowing employees to attend work as an “avatar” can also facilitate abusive employee practices such as “buddy punching” or “quiet quitting.” Buddy punching is a practice whereby one employee has a coworker clock in or out for them. In a “meta” office, the employee could have someone else log in for them or even send an entirely different person (or perhaps ChatGPT) in their place. Quiet quitters could potentially go in for work, “go” to a meeting, set their avatar on mute or “listen” mode and subsequently leave the room.
Another complication is ensuring that minimum wage requirements are met. Many meta platforms operate in crypto-currencies and there are developers who are actually employing meta workers and paying them with such tokens. In April 2022, the U.S. Department of Labor’s Office of Public Affairs weighed in on this practice, opining that payment in cryptocurrency is not permitted under the FLSA which provides that, “wage payments may be in cash or negotiable instrument payable at par (e.g., payment by check).” Several state laws have similar provisions.
Even if payment in cryptocurrencies or NFTs is ultimately deemed a permissible practice, it is not a straightforward one. By their nature, cryptocurrencies fluctuate in value. This presents additional challenges in determining whether the employee is being compensated at minimum wage, and for determining the regular rate of pay for calculating overtime.
National Labor Relations Act (“NLRA”)
Operating a virtual meta office enables employers to monitor employee performance, communications and interactions closely and from anywhere. Section 7 of the NLRA provides that the rights of employees shall include the rights to “self-organization, to form, join, or assist labor organizations” and to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employers may not conduct surveillance of employee union organizing efforts or even give the impression of surveillance.
The Board’s current General Counsel Jennifer Abruzzo issued a memorandum in late 2022 stating her view that electronic monitoring and algorithmic management of employees interferes with Section 7 Rights. She was particularly concerned that “if the surveillance extends to break times and nonwork areas, or if excessive workloads prevent workers from taking their breaks together or at all, they may be unable to engage in solicitation or distribution of union literature during nonworking time.” Although the metaverse is not specifically addressed in the memorandum, her concerns would apply equally in that context.
Another question is whether employees have an absolute right to use their employer’s digital and electronic systems to engage in Section 7 activities. While the Board has gone back and forth in recent years with changes in the administration, employees who exclusively go to work in a “meta” environment would almost certainly have that right. In Purple Communications, an Obama-era case, the Board held that workplace rules prohibiting employees from using company electronic systems to conduct union organizing activities are presumptively invalid. Later, however, in Caesars Entertainment dba Rio All Suites Hotel & Casino, a Trump-appointee majority Board reversed the rule and held that employees do not have a presumptive right to use employer-owned IT systems for Section 7 activity. However, the Caesars Board recognized an exception where an employer's e-mail system is the only reasonable means for employees to communicate with one another. The Board explained that employees must have “adequate avenues of communication” in order to meaningfully exercise their Section 7 rights. It reasoned that, “in the typical workplace . . . oral solicitation and face-to-face literature distribution provide more than ‘adequate avenues of communication.’” Of course, a meta workplace is not “typical” and obviously face-to-face communication is not possible. Accordingly, this is precisely the type of scenario that would fall into the exception carved out by Caesars. GC Abruzzo has indicated an intent to revisit the Caesars decision and return to a Purple Communications framework. Under either standard, however, meta-only workers would have no other means to communicate than via employers’ electronic systems.
Laws regulating the use of AI to make employment decisions
As noted above, there has been a recent regulatory and legislative focus on the use of AI technology to make employment decisions at the federal and state level. If Meta and Microsoft are any indication, meta platforms for business will likely incorporate AI technology and, thus, will be governed by the emerging laws in that area. Further, as metaverse technology becomes more prevalent, legislators are likely to apply a similar approach to its use. Sone of the regulatory and legislative efforts underway with respect to the use of AI include: the initiative on AI and Algorithmic Fairness and issued guidance on the use of such technology to make employment decisions; EEOC and DOJ joint technical assistance document titled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees”; the White House “Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People.”; and The New York City (“NYC”) Automated Employment Decision Tools Law, N.Y.C. Admin. Code Sec. 20-870, et seq.
Several proposed bills have been introduced in other states and the federal government is actively working on legislation to regulate the use of these tools. Insofar as metaverse workplaces incorporate artificial intelligence technology to make employment decisions or otherwise manage the workforce, employers should comply and stay abreast of new developments in this rapidly emerging area of the law.
Best practices for employers operating metaverse workplaces
Metaverse technology is full of promise and potential for employers and employees alike. But like with any new form of technology, there are practical and legal risks that must be taken into consideration before implementation. Here are a some suggested best practices for employers that are exploring the idea of operating virtual reality “meta” workplaces:
Work with the developer to customize the platform to your workforce and its needs:
Make sure you have a firm grasp of how the technology works.
Ensure you are not inadvertently collecting biometric or other personal data that could run afoul of privacy laws.
Clearly delineate “working” spaces and time from break time and “rooms.”
Make “safe space” technology available.
Anticipate and optimize accessibility for disabled employees to the extent possible.
Make sure multiple reporting avenues are available even for metaverse workspaces.
Make disclosures to employees and obtain proper consents for any data collection or monitoring.
Update, develop and clearly communicate policies on:
Discrimination, harassment, bullying, professionalism and other work rules.
Consider implementing “dress codes” and rules around professional appearance. But always ensure such rules are applied uniformly and across the board.
Timekeeping & working off the clock.
Remote work – make sure that employees inform you where they are located geographically for compliance with local and state law.
Assess whether requiring reporting to work in a meta environment has a disparate impact on any protected groups.
Carefully consider all requests for accommodations for disabilities.
Training, training and more training.
