So what, when the world is busy getting back into the post-pandemic groove; why should HR even be interested in this?

 The Metaverse, and the proliferation of remote working arrangements are the two tectonic shifts that are reshaping the world we work in since the onset of Covid-19.

 Metaverse is an emerging technology that is diminishing the boundaries that exist between reality and technology; it has been defined as a “virtual-reality space in which users can interact with a computer-generated environment and other users.” (Lexico)

 The Metaverse will provide many opportunities for businesses of all sizes and types to reach a wider audience. (Forbes 26/01/22)

If your organisation is considering, or taking, the first steps into accessing the new horizons offered by the Metaverse and its various access points, Virtual Reality (VR), Augmented Reality (AR)and Extended Reality (ER) then you need to recognise the attendant risks. And there are plenty of them.

The adoption of this technology by organisations, especially those that work remotely or are multinationals presents new risks related to data privacy, intellectual property, cybersecurity and worker health and safety.

Complying with various laws in the Metaverse will present plenty of challenges for HR professionals, along with workplace and liability issues arising from the hardware associated with it.

Disputes related to who owns data and intellectual property in the Metaverse will be a major area of contention. For Human Resources professionals keeping tabs on the processing and control of personal data of employees could turn into a nightmare.

The Metaverse will almost certainly throw up new requirements for data protection in areas where the processing of facial expressions, hand gestures, conversations, and evidence of, for example, gender, age and race could be vulnerable to hackers and others with malign intentions. This very likely will lead to wider application of the term ‘Data’

General Data Protection Regulation (GDPR) already covers aspects of data privacy, and negligent or wilful acts which lead to breaches of the Regulation can result in compensation claims from the affected party. In other words, it doesn’t matter if HR, Security or Health & Safety teams are responsible, negligence or failure to implement reasonable security measures will give rise to plenty of costly litigation.

 Another factor in this new array of risks will be the creation and use of copyrighted Avatars in the Metaverse. Currently, many users of this new technology use avatars that are freely available and have not checked if they are copyrighted or even Non-Fungible Tokens (NFT). Using such avatars will almost certainly lead to copyright violation claims from their originators.

Another big area for potential litigation is workplace injury. The Meta Quest 2, for instance, comes with 10 pages of H&S warnings related to use of the set. Another popular headset, the HTC Vive Pro 2 Specs weighs 855g (1lb 9 ozs).

Many VR hardware users have complained of headaches, watery eyes, back pain, and stress when using the headsets.

 In the absence of suitable VR headsets and ergonomic workstations, employees are at risk of injury, and the resulting litigation or insurance claims can lead to future higher premiums or difficulty in obtaining adequate cover.

Every employer must carry out individual assessments for each employee to determine if:

 a)   if they are fit physically and mentally to work remotely, and the levels of support each employee will require;

b)  the remote work environment is safe and conducive to effective working;

c)     that they will be able to use the headsets regularly for the necessary periods of time.

d)     There are no pre-existing conditions that could be aggravated by using headsets and/or working in the VR space.

 The makers of the most popular VR headsets recommend taking “at least a 10 to 15 minute break every 30 minutes, even if you don’t think you need it.”

 Apart from the headset weight, there can be loss of spatial awareness and various other unpleasant symptoms when taking off the headsets. In prolonged calls, an employee could easily end up using the headset for longer periods with increased risk of workplace injury.

Harassment in the metaverse

As more employees log into the virtual world, the risks of physical, verbal and written harassment increases. During the pandemic, the HRs had a tough time drafting, implementing and keeping tabs on cyber bullying and cyber harassment and this is going to get much more difficult in the metaverse.

What if there are assaults – sexual or physical – between the avatars who are employees in real life? Such incidents could be in breach of tort law or criminal law.

Proving assault or battery would also be much more difficult because it usually requires “actual bodily harm” and in the metaverse, there will naturally be no actual bodily harm.

Additionally, avatars are not legal persons, so how would they ever be accountable?

This requires giving a legal persona to the avatars;  giving them rights and duties within a legal system; allowing them to sue or be sued.

For the HR of a company, this is eased a bit as they may know which employee is behind an avatar and the identity is not masked, but such an employee who engages in assault or harassment may escape the legacy laws.

How can HRs gear up for the metaverse?

  • Drafting policies, code of conduct and guidelines for the employees to adhere to in the metaverse
  • Regular assessments of the tools and equipments like VR headsets to ensure they are updated and that there is no risk of a workplace injury
  • Drafting guidelines to use VR headsets, for example, mentioning how to use the headsets and for how long, recommended breaks, activities to do in between to mitigate the risk of occupational injuries etc.
  • Creating and updating a database of avatars used by employees and running them by the security and compliance team to check if they infringe any copyrighted material or for possible data leaks
  • Regular training, workshops and upskilling of employees to use the VR platform and the equipment
  • Proactively bridge the gap between the laws and compliances of the real world with the virtual world

 Digital transformation across the board is inevitable and so HR will need to harness technology in its quest to ensure both the well-being of employees and showing of risk to employers. There are AI-assisted online robots already in use andshowing excellent results from users operating up to the highest stress levels in some activities. Additionally, the business systems themselves can be calibrated for individual users to protect them from overwork or prolonged spells of screen time.

With the perpetual process of innovation in work styles and equipment, so is increasing the necessity of commensurate risk review, strategy, planning and implementation to meet every case. This will also include training in the management of remote workers, which has been recognised as a key skill set for the future.

The challenges ahead will multiply, and it is going to tax HR professionals to the limit to keep up with them.

Posted by Bhagyashree Pancholy

Bhagyashree Pancholy is a lawyer and a remote work consultant with over 10 years of employment law and international expansion of businesses experience. Her interests lies in the intersection of technology and law and has been actively involved since the last year in legally exploring metaverse and Web 3.0. She is currently the GC at Lano and owns All Remotely and Meta Lawyers India.

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