At present, more and more companies, from different sectors of activity, are betting on an active presence in virtual reality spaces or in the different existing “Metaverses”, through which users, consumers, and now also workers to carry out their work activity.
It is true that the labor provision in these virtual reality spaces still does not have a specific legal regulation, but we do find labor regulations and jurisprudence that fill this initial gap by regulating, and complementing on many occasions, certain aspects that act as limits before eventual and novel conflicts that may occur in the development of these labor relations.
Some of these conflicts may arise from the misuse or abuse of corporate avatars (who decides which avatar to use and how to use it?); non-compliance with the regulatory limits of remote work; workplace or sexual cyberbullying; the lack of prevention or evaluation of psychosocial risks, such as computer fatigue; or the lack of guarantee of the right to digital disconnection.
In this article I will focus on this last right and on how a digital disconnection policy should be correctly articulated in the workplace in virtual environments.
We necessarily start from art. 88 of the Organic Law 3/2018, of December 5, on Data Protection and Guarantee of Digital Rights (LOPDGDD), which regulates the right to digital disconnection of all workers, also including and especially those teleworkers (art. 16 and 18 Law 10/2021, of July 9, on remote work).
The essential content of this right entails the obligation of companies to guarantee, outside of legally or conventionally established working hours, respect for their rest time, permits and vacations, as well as their personal and family privacy.
For its part, this regulation obliges companies to develop an internal policy of digital disconnection, with the participation of workers’ representatives, as well as the prevention of computer fatigue, as part of the mandatory assessment of psychosocial risks, including training and awareness of staff on the reasonable use of technological tools.
Next, we will analyze some of the main issues that have already been resolved by our Courts, and that undoubtedly help to outline their scope when guaranteeing their effective application in the company.
Who should provide the technological tools to carry out teleworking in virtual environments?
The recent SAN of June 27, 2022 (Rec. 128/2022), has declared contrary to law the employer’s practice of requiring the provision of personal means, such as personal email in certain actions or operations of the employment relationship, by virtue of the principle of alienation of the media in an employment relationship, and must be contributed by the employer (STS 8-2-2021).
Therefore, both the creation of virtual work environments and the necessary means to work in these environments, including virtual reality glasses, must be provided by the company.
What happens to companies in which there is no legal representation of workers?
According to the technical criteria of the General Directorate of Labor of 12-17-19, in these cases, the company must arbitrate procedures for the participation of the workforce in the terms agreed by the company. Among other possible formulas, it would be possible, for example, ad hoc commissions or participation list surveys prior to the approval of the template.
Can the company unilaterally impose exceptions to the digital disconnection in the absence of an agreement with the legal representatives?
In relation to the imposition of urgent or necessary situations in which the worker must be digitally connected, unless expressly agreed with the legal representatives of the workers, it would not be possible, since it is a necessary right. In this case, the limits to the right to digital disconnection in teleworking cannot be established unilaterally by the employer, but rather, as indicated in art. 88 LOPD, will be subject to what is established in collective bargaining or, failing that, to what is agreed between the company and the workers’ representatives (SAN 15-3-22. Case TELEPERFORMANCE).
Nor should disciplinary action be taken against a worker for failing to comply with instructions received by electronic means during the vacation period, since the employee does not have the obligation to attend to work emails or electronic messages during vacations, in accordance with the right to digital disconnection (STJS Madrid 21-2-22, Rec. 20/2022).
Does all electronic communication outside working hours violate the digital disconnection?
If it is the worker himself who provides his telephone number voluntarily to regularly maintain communications with the company to receive or transmit news, data or information related to work, it would not constitute a violation of the right to digital disconnection, provided that they do not require or imply the provision of services outside of their working hours (STSJ Asturias 29-3-22, Rec. 410/2022).
A different question would be, in my opinion, if the worker were required to answer those communications, outside of working hours, or to be connected at home pending them, in which case, if the right could be understood as being violated.
Would the right to digital disconnection be violated by forcing a worker to attend a training course or carry out a work activity outside of working hours?
In this sense, and taking into account the nature of the right, it would not affect the right to digital disconnection (and, therefore, personal and family privacy) if the company orders the performance of effective and paid work outside normal hours, because then we no longer speak of rest time, but of working time, without prejudice to being considered, where appropriate, overtime, and compulsory training is considered effective working time for all purposes (STSJ Madrid 4-11- 20, Rec. 430/2020).
Is the company obliged to evaluate the risks derived from the connection in virtual work environments?
Lastly, another of the controversial aspects, and that, without a doubt, will generate numerous legal conflicts, is the prevention of computer fatigue derived from the intensive use of technological tools, having to have a specific evaluation of psychosocial risks in the event that It is decided to develop and incorporate virtual work environments into the activity, especially when the use of virtual reality glasses is required to avoid eye or other damage due to the excessive use of these devices (Technical Criterion 104/2021 of the Labor Inspectorate).
Being aware of the irruption of virtual reality in labor relations, and without missing out on its important benefits and advantages, we must not lose sight of the protection of workers that the law now offers them with the regulation of the right to digital disconnection and the new obligations that it entails for companies, being necessary a normative adaptation of business practices and policies for the complete guarantee of this new labor law of the 21st century.
By Raúl Rojas, partner of Écija
George is Digismak’s reported cum editor with 13 years of experience in Journalism