The metaverse: the workplace 3.0 (from a European perspective)?

Nicolas Simon
Van Olmen & Wynant, Brussels
nicolas.simon@vow.be

Introduction

With the pandemic and remote working, virtual meetings have become mainstream in the workplace. Surfing on this trend, the increasingly fast internet and technology developments, the metaverse seems to be the next step in the transformation of the workplace.[1]

According to ChatGPT, the ‘metaverse’ refers to a virtual reality space that encompasses all virtual worlds, augmented reality and the internet as a whole. It is a collective virtual shared space where people can access immersive digital experiences, socialise, create content and conduct various activities. The metaverse aims to create a unified and interconnected virtual reality layer on top of the physical world. Users navigate through virtual environments using avatars, interact with objects and communicate with others in real-time. It represents a vision of a fully immersive, interactive and limitless digital universe, with vast potential for gaming, education, business and entertainment.

Applied to the world of work, the metaverse enables remote communication and offers, that is, the support of virtual reality and artificial intelligence as work tools. It raises numerous legal questions however, and we will attempt to identify the main questions in regards employment law below.

The metaverse and the workplace

Implementing a new technology, which has important collective consequences with regard to employment law, work organisation or working conditions, implicates in Belgium – as in many European countries – the obligation to inform and consult the employees’ representatives. The employer is required to provide information about the nature of the new technology, the factors justifying its introduction and the nature of the social consequences it entails. Additionally, the employer must engage, in consultation with employees’ representatives, on the social consequences of introducing the new technology.

The metaverse will also infer the need to update the health and safety policies of the company. Working on screens and with little movement for long periods of time will have an impact on the physical health of employees, which will need to be addressed. Moreover, working in the metaverse will also have a psychological impact, ranging from identification with the avatar (as an idealised representation of oneself) to the lack of physical contact with people (social isolation), to the risk of increased misbehaviour (discrimination, violence, harassment facilitated by the disinhibiting effect of virtual reality and the avatar interface), to stress and the imbalance between a person’s private and professional life.

In this respect, more and more countries (Belgium, France, Portugal, some states in Canada) have introduced or are introducing certain obligations regarding the right to disconnect. If we move to a fully virtual workplace, this will become even more important.

The metaverse and the tools that accompany it (eg, virtual reality googles, virtual reality gloves) could also be the next reasonable accommodation to compensate for the disability experienced by some employees. It can allow disabled persons to perform tasks which in real life would not be possible. On the other hand, it is necessary to avoid the downgrading of employees who may not be able to use the metaverse, for example because of their age or education, by giving them adequate time and training.

As the parties to the employment contract will interact in a new environment, it will have an influence on their rights and duties. All the more so, in that the employer will be able to more closely track the health data of the employee and their work attendance, and the employee will use an avatar which will create a new interface.

The use of virtual reality goggles, virtual gloves and other connected items, will give the employer access to additional personal data – in particular health and biometric data – of the employee, the majority of which the employer will not be able to use if it does not want to violate the EU’s General Data Protection Regulation (GDPR).

Technical safeguards will need to be put in place to prevent unauthorised use of this data. In this regard, assessing the performance of an employee will implicate having to respect the GDPR and their right to privacy.

On the other hand, the use of an avatar will not prevent the employee from having to respect the restrictive covenants of their employment contract. As the avatar has no legal personality, the employee’s obligations will remain with them, without the avatar being an excuse to transfer them. Furthermore, even if an avatar can in principle be chosen freely, it seems advisable to choose avatars that identify the employee to whom they refer. It raises the question of dress code, necessity of neutrality and possible discrimination by association towards the employee through their avatar.

If the avatar is linked to an employee (and is not only driven by artificial intelligence (AI)), it becomes a form of personal data which implicates following the rules of the GDPR, that is, processing register, adaptation of the privacy policy, necessity of a legal ground for processing, the avatar cannot process more data than what is necessary for the purpose, necessary security must be foreseen and there is a right to access, rectification, erasure and limitation on the processing. As the avatar (coupled with AI) learns from itself and can extend its capabilities based on the information it has already processed in the past, the principles of purpose, data limitation and accuracy must be respected. From this perspective, it is important to define the purposes for which the avatar will be used and verify periodically that the data that it processes are still accurate and correct. Furthermore, the data cannot be kept longer than what is strictly necessary. It will have an influence on the memory of the avatar, which will not have the possibility to keep the data infinitively, unless they are anonymised. At the end of the employment contract, the question will also arise as to whether the employee has the right to take their avatar with them or to have it deleted.

As the employees working through their avatars in the metaverse are not necessarily located in the same country, it will also trigger the question of the applicable law and competent jurisdiction. Some predict that jurisdictions will enter into the metaverse, but this is not the case currently.

According to the Rome I Regulation (EC 593/2008), the parties to an employment contract can freely choose the law applicable (Article 8), provided than it does not reduce the rights of the employee than would have been applicable in the absence of choice. Article 8 foresees a cascade system, that is, the law of the country in which, or from which, the employee habitually carries out their work in performance of the contract will be applicable, if it is not possible to determine the law on this basis, then the law of the country where the place of business through which the employee is situated is applicable and, if it is not possible to determine the law on this basis, then the law of the country where it appears the contract is the most closely connected will be applicable. Besides, the determined law cannot prevent the application of overriding mandatory provisions, that is, such provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope (Article 9).

In their relationship with the employer, the applicable law will be, most of the time, the country where the employee is sitting down in front of their screen. In cases where multiple employees are concerned, that is, victims and perpetrators in the case of harassment or discrimination, the applicable law would in principle be the one where the victim makes their complaint, but what would happen if there were several victims who each want to initiate proceedings according to their own employment law and in their own jurisdiction? The metaverse will mean that the case law or the legislator will have to adapt the connection criteria for determining the applicable legislation.

The same applies to the competent jurisdiction according to the Brussels Ibis Regulation (EU 1215/2012). An employer can be sued in the courts of the EU Member State where it is domiciled, or in another Member State where or from where the employee habitually carries out their work or, if the employee does not or did not habitually carry out their work in any one country, in the courts of the place where the business that engaged the employee is situated (Article 21). If the proceedings come from the employer, they must only be brought in the courts of the EU Member State where the employee is domiciled, unless a counterclaim is made subsequent to an original claim brought by the employee in another Member State (Article 22).

As claims can come from employees located in different countries, there is a risk of lis pendens for related actions. Article 29 already provides a solution with the ‘first come, first served’ principle, that is, any court other than the court first seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established; where the jurisdiction of the court first seized is established, any court other than the court first seized shall decline jurisdiction in favour of that court.

Conclusion

In conclusion, the metaverse might become the workplace 3.0, even if it is still in its evolution, and will not be in the form we are currently expecting. The metaverse offers a lot of perspective, particularly in connection with artificial intelligence and virtual reality. The possibility to virtually connect and meet people from all over the world already exists, but the metaverse will make it more realistic and enhance the possibilities. This triggers questions about the applicable law and competent jurisdictions. With the continued connection, the employer will also be able to collect an enormous amount of personal data that will need to be protected. On the other hand, the employee will (more or less) be in the physical workplace and will use an interface, which could make it more difficult to enforce restrictive covenants, such as non-compete or protection of intellectual property (IP) clauses. The new virtual environment and permanent connection will also create the need to update the health and safety support provided to employees.