Employer Use and Regulation of Employees in the Virtual World
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Employer Use and Regulation of Employees in the Virtual World

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As employees venture onto virtual worlds for personal and corporate purposes, employers must consider policy implementation in addressing the emergence of employee avatars to protect the employees and ...

As employees venture onto virtual worlds for personal and corporate purposes, employers must consider policy implementation in addressing the emergence of employee avatars to protect the employees and the employer, its IP, and other concerns. This slide presentation identifies some of these items to consider. Copyright 2011 Mudd Law Offices.

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  • (See “How Early Adopters Use Virtual Worlds for Play…and Work.”) ( http:// sloanreview . mit . edu /the-magazine/2011-spring/52311/unlocking-the-business-potential-of-virtual-worlds/ )
  • http://www.lexisnexis.com/community/workerscompensationlaw/blogs/workerscompensationlawblog/archive/2010/02/17/avatars-in-the-workplace_3a00_-a-legal-and-ethical-minefield_3f00_.aspx
  • http://docs. google .com/viewer?a=v&q=cache: HGUo _Zodt8kJ:www.students. yorku .ca/~ vickymc /docs/McArthur-Thesis. pdf +outsiders,+interlopers+and+employee+identified+avatars&hl=en& gl =us& pid = bl & srcid =ADGEESgOkxULs6uVvjrmgNjJDatQbnV8K67C9jbD1NLBOL23UuFvcr7uHXM97UZ6TTiIBlT_LXfjikun2DR_ BJd -mofHslosnuWpm7svjfHEL1ptxT7K3D5HudwEkiNDCjYBU5- MKWuo & sig =AHIEtbTyDM6vbgcGO2-iFqSeZqmMb5v3gQ
  • . (“Virtual drag a thorny issue for employers.” By Maria Korolov)
  • ( http://www. hypergridbusiness .com/2010/02/virtual-worlds-pose-compliance-risks/ Feb 24. 2010
  • http://www.uncp.edu/home/acurtis/NewMedia/SecondLife/SafeguardsInSecondLife.html
  • ( “Virtual Drag a thorny issue for employers” By Maria Korolov)
  • (http:www.computerworld.com/s/article/344833/Virtual_Worlds_Employee_Avatars_Will_Need_Dress_Codes Nov 2 2009)
  • http://www.silicon.com/management/cio-insights/2009/10/09/avatars-made-to-wear-a-suit-to-work-as-the-style-police-arrive-39568560/ http://www.telegraph.co.uk/technology/twitter/6271440/Companies-should-impose-dress-codes-on-online-avatars-used-by-employees.html
  • http://www.silicon.com/management/cio-insights/2009/10/09/avatars-made-to-wear-a-suit-to-work-as-the-style-police-arrive-39568560/ http://www.telegraph.co.uk/technology/twitter/6271440/Companies-should-impose-dress-codes-on-online-avatars-used-by-employees.html
  • . (“Virtual drag a thorny issue for employers.” By Maria Korolov)
  • http://www. americanbar .org/content/dam/ aba /migrated/ intelprop /magazine/LandslideSep08_Kane. authcheckdam . pdf
  • http://www. americanbar .org/content/dam/ aba /migrated/ intelprop /magazine/LandslideSep08_Kane. authcheckdam . pdf http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideSep08_Kane.authcheckdam.pdf
  • http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideSep08_Kane.authcheckdam.pdf
  • http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideSep08_Kane.authcheckdam.pdf
  • http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideSep08_Kane.authcheckdam.pdf http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideSep08_Kane.authcheckdam.pdf
  • http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideSep08_Kane.authcheckdam.pdf http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideSep08_Kane.authcheckdam.pdf
  • http://www.hypergridbusiness.com/2010/02/virtual-worlds-pose-compliance-risks/
  • http://www.hypergridbusiness.com/2010/02/virtual-worlds-pose-compliance-risks/ http://www.hypergridbusiness.com/2010/02/virtual-worlds-pose-compliance-risks/
  • Violation of Fourth Amendment Right against unreasonable searches when company reviewed text messages.
  • (Socially Aware: The Social Media Law Update; Volume 1, Issue 4, Oct. 2010)
  • (Socially Aware: The Social Media Law Update; Volume 1, Issue 4, Oct. 2010)
  • http://virtualnavigator.wordpress.com/2011/01/28/labor-and-employment-issues-in-online-environments-increasing/
  • http://www.ediscoverylawreview.com/tags/social-media-and-employment/
  • http://www.ediscoverylawreview.com/tags/social-media-and-employment/
  • ( http://www. hypergridbusiness .com/2009/08/virtual-drag-a-thorny-issue-for-employers/ Aug 28, 2009)

Employer Use and Regulation of Employees in the Virtual World Employer Use and Regulation of Employees in the Virtual World Presentation Transcript

  • Utah Cyber Symposium 2011 Supporting Professionals’ High Tech Presence Thanksgiving Point October 28, 2011
  • Employer Use and Regulation of Employees in the Virtual World Charles Lee Mudd Jr. Mudd Law Offices 311 Main Street Park City, Utah 84060
  • Background
    • Mudd Law Offices
    • High Tech
    • Internet
    • Virtual
  • What is a Virtual World?
    • A virtual world is an online community that often takes the form of a computer-based simulated environment through which users can interact with one another and use and create objects. ( Wikipedia )
  • What is a Virtual World? (cont’d)
    • Some questions…..
    • Might I know them by other names?
    • Haven’t Virtual Worlds been around since the 1990s?
  • What is a Virtual World? (cont’d)
    • “ A Rape in Cyberspace” by Julian Dibbell
    • See: Dibbell, Julian. "A Rape in Cyberspace." The Village Voice, December 21, 1993. Dibbell's article suggests that cybersex has indeed brought with it more than the pandering of sexual material.
  • What is a Virtual World? (cont’d)
    • Similar Components
    • Chatrooms
    • Electronic Communications
  • What is a Virtual World? (cont’d)
    • Are all Virtual Worlds alike?
    • Certainly not……
  • Examples of Virtual Worlds
      • Second Life
      • The Sims Online
      • Dreamville
      • Playdo
      • CyberTown
      • Club Penguin
      • Disney’s Toontown
  • Second Life
    • One of the most popular, Second Life, is a 3D online, virtual world imagined and created by its “Residents.”
    • ( http://www. vintfalken .com/second-life-a-world-imagined-created-and-owned-by-its-residents-no-more/ )
  • Second Life
    • Even with Virtual Worlds, so follows politics…..
  • Second Life
    • In 2009, residents logged 124 million user hours in the first quarter.
    • In 2010, 116 million user hours.
    • In 2011, 104 million user hours.
    • (The Second Life Economy)
  • Avatars
    • What is an Avatar?
      • The graphical representation of the user or the user's alter ego or character . ( Wikipedia )
  • Avatars
    • How is an Avatar different from other communication methods?
    • Clothing? I need clothing?
  • Employee-Avatars
    • Avatars as Employer Representatives
    • Employees who are Avatars
  • Employee-Avatars
    • Employees have begun using avatars, or cartoonish animated online characters, to represent themselves in these meetings. Some companies and employees pick avatars that reflect their real identities — but other avatars are fantastical, whimsical, or gender-bending.
      • ( “Virtual Drag a thorny issue for employers” by Maria Korolov)
  • Benefits of Avatar-Employee Representation
    • Saves money
    • Travel, conference expenses
    • Employee training
    • Low-risk, low-cost
    • Survey respondents reported frequent use of virtual worlds not only for recreational uses but also for work uses such as brainstorming (48%) and project coordination (36%)
  • Employer Use of Virtual Worlds
    • Hiring
    • Recruit Employees
    • Networking online for those seeking employment
    • Conducting employee training and new-hire orientations
    • Virtual meetings.
  • Companies and Avatars
    • Communication and Practicality
      • Thousands of employees at companies like IBM, Cisco, SAP, and Boeing have been using avatars to interact with colleagues and customers around the world.
  • Companies with Second Life Presence
    • Sun Microsystems
    • Reuters
      • Virtual Journalism
    • Dell
    • Cisco Systems
      • Hosts Speakers
    • H&R Block
      • Can buy online tax prep software
    • Geek Squad
      • IT Assistance
    • Corporate Planners Unlimited, Inc., (a corporate events and travel company)
      • Virtual events services.
    • And…..
  • Companies with Second Life Presence
    • IBM
      • Showcases its products
      • Avatars can test them out
      • In 2007, IBM had 12 virtual properties in Second Life, using them for training, meetings, and recruitment.
      • In 2010, IBM had over 35 virtual properties in Second Life and even offered design solutions for other companies interested in having a presence in Second Life.
  • Employer Use of Virtual Worlds
    • Saved for Discussion…..
  • Why Should Employers Be Concerned?
    • Sexual Harassment
    • Growth of Virtual Worlds
    • Dilution of Brands and Marks
    • Defamation and Other Torts
    • Competition Related Issues
    • Violation of TOS
    • Agency
    • Recorded Encounters
    • And More……
  • Why Should Employers Be Concerned?
    • Sexual Harassment
      • SH can take place via email, social networks, in person, or in virtual worlds.
      • Employers have obligations to create and enforce guidelines for appropriate behavior.
      • Employers must take immediate measures when a complaint is made.
      • No Different in VW
  • Why Should Employers be Concerned?
    • Sexual Harassment (cont’d)
      • Law enforcement agencies estimate that electronic communications are a factor in 20-40 percent of stalking cases.
      • Forty-four states have laws that include electronic forms of communication within stalking or harassment laws.
  • Sexual Harassment
    • I need Clothing? But, you are a woman?!
      • As use of virtual worlds in business increases, employers need to be cognizant of extending corporate dress codes to virtual worlds. This can manifest itself in a number of ways.
      • Employers should be allowed to insist that employee-avatars reflect their offline professional identities and/or comply with the same dress codes imposed or appropriate for physical workplaces.
        • Some companies, like IBM, adopt a more progressive policy and allow employees flexibility with how they express themselves in an online environment.
  • Dress Code Statistics
    • By the end of 2013, 70% of companies will have set behavior guidelines and dress code for employee-avatars.
    • November 2009
  • Addressing Dress Code Concerns
    • Employee-Avatar’s behavior and appearance reflect the individual and their employer
    • Employers must understand that many employees "dress up" their avatars to express creativity and imagination
    • Consider Encouraging Representation of Employer with Cautionary Approach That Allows Individual Expression
  • Addressing Dress Code Concerns
    • Encourage employees to represent the company
    • Educate employees about the "risks and responsibilities of reputation management" in online environments
    • Encourage use of separate avatars for personal and professional use to avoid liability and reputation situations.
  • Dress Code Implementation
    • Remember Corporate Planners Unlimited, Inc…….?
    • (a corporate events and travel company)
      • There are about twenty people in the company’s Virtual convention center in Second Life.
        • The company employees dress in a company uniform-black pants and white shirts with the company logo.
        • When organizing a conference, President Dan Parks and his staffers will create avatars for everyone who plans to attend with a conservative business appearance. Or, if the customer requests custom avatars, they can be built using actual photos of the people.
  • Why Should Employers Be Concerned?
    • Intellectual Property Issues
  • Why Should Employers Be Concerned?
    • Intellectual Property Issues
    • Disclosure of IP
    • Brand and Mark Tarnishment
  • Why Should Employers Be Concerned?
    • Intellectual Property Issues
      • IP rights to creations in virtual world.
      • Avatars are considered the owners of certain intellectual property involved and created by them in the virtual world.
      • Up to 80% of the content has been created by the users
      • Between Employer and Employee - Who Owns IP?
  • Why Should Employers Be Concerned?
    • Intellectual Property Issues
    • Virtual worlds are designed to allow for gamers to build up their avatars in the virtual society by earning virtual currency and developing skills.
    • Both real and personal property can be purchased or created in the virtual world and used by avatars.
  • Why Should Employers Be Concerned?
    • Intellectual Property Issues
    • Many VW residents have begun to sell their digital goods or property for real world money
    • Currency Exchange
    • Some examples of most popular and successful business are clothing designers, entertainment complexes (eg virtual skydiving).
  • Other Specific IP Issues
    • Copyright Infringement
      • Radio Stations in Virtual Worlds that broadcast music without a license
      • Distribution of books
      • Distribution of movies to watch in one’s “virtual home.”
  • Other Specific IP Issues
    • Trademark Law
      • Concern for real world companies
        • Products or marks are being counterfeited in virtual worlds.
  • Other Specific IP Issues
    • Trademark Law
      • Question regarding the nature of virtual goods:
        • If a user makes a pair of name brand shoes in Second Life (for example, Nike) and sells them, is the user selling shoes, a picture of shoes, or something altogether new?
  • Why Should Employers Be Concerned?
    • Communication Risks
      • Many industries have legal or regulatory limits about communications.
        • In brokerage firms, for example, certain traders are not supposed to talk to certain analysts.
        • Lawyers and doctors face constraints about what kind of advertising they are allowed to engage in in some jurisdictions.
  • Why Should Employers Be Concerned?
    • Communication Risks
      • Courts and regulators have been consistent in viewing electronic communications as subject to oversight, and have fined companies millions for mishandling emails or instant messages.
      • The Financial Industry Regulatory Authority released guidelines on the use of social networking technologies.
      • It is likely that communications in virtual world would be subject to the same regulatory requirements – if they aren’t already.
  • Cases
    • Amaretto Ranch Breedables, LLC v. Ozimals, Inc.
      • Copyright dispute between business competitors who sell virtual animals in the virtual world “Second Life.”
        • Claims: (1) misrepresentation; (2) tortious interference with prospective business advantage; (3) unfair competition under California Business and Professions Code; and (4) misuse of copyright.
        • Plaintiff sought a temporary and preliminary restraining order preventing Defendant from removing Plaintiff’s virtual horse product line.
  • Cases
    • Amaretto Ranch Breedables, LLC v. Ozimals, Inc.
      • Court granted Plaintiff’s request
      • Defendant filed Motion to Dismiss
    • Amaretto Ranch Breedables, LLC v. Ozimals, Inc., 2011 U.S. Dist. LEXIS 52796 (N.D. Cal. Apr. 22, 2011)
  • Cases
    • Bragg v. Linden Research, Inc.
    • Plaintiff, owner of virtual property on Second Life, sued defendants, operators of Second Life, for a number of claims arising out of the operators’ removal of certain virtual property purchased by plaintiff.
        • Plaintiff argued that the operators of the site unlawfully confiscated his virtual property and denied him access to their virtual world.
        • Court found the arbitration provision in Second Life to be unconscionable and the parties reached a settlement.
    • Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. PA 2007)
  • Creative Use of Avatars and Employee Worlds by Employers
  • Policy Development
    • Social Media or Separate Concerns
    • Spell Out Specifically Due to Unique Situations
    • Monitor Communication Policy
      • Supreme Court Ruling
      • City of Ontario, California v. Quon
    • Further Considerations
  • Establishing Employee Avatar Appearance Codes
    • What employers should consider:
      • Extend existing employee code of conduct to include Avatars in virtual environments.
      • Enforce Avatar appearance codes equally and fairly.
        • Employment Discrimination laws require that employers establish uniform guidelines applicable to all.
  • Establishing Employee Avatar Appearance Codes
    • What employers should consider:
      • Avoid content-based regulation
        • Employers should not develop appearance codes that could form the basis of a discrimination claim (ie, bans on religious symbols)
      • Train employees on the risks and responsibilities of workplace Avatars.
  • Policy Development
    • IBM Guidelines for Employees
    • Further Considerations
  • Employer Discipline
    • Establish Policy
    • Policy Consistency
    • Other Means
  • Regulation of off-duty Internet Activity
    • Waiters sued their restaurant for unauthorized access of their Facebook pages
    • Delta flight attendant fired after posting suggestive photos of herself in her uniform
    • Employee complained about her supervisor on her personal Facebook page after being denied union representation at an investigatory interview. Employer discovered the complaint and terminated the employee.
  • Regulation of off-duty Internet Activity
    • Laws that may apply:
      • National Labor Relations Act
        • When considering taking adverse action against an employee based on – or after obtaining knowledge about – the employee’s social media statements or conduct, you should at a minimum consider whether that employee was arguably engaging in protected activity under a statute such as the NLRA.  
      • State Laws
        • Some states such as California, Colorado, Connecticut, New York and North Dakota, have enacted statutory protections for employees who engage in lawful off-duty conduct
  • Regulation of off-duty Internet Activity
    • Laws that may apply:
      • National Labor Relations Act
        • When considering taking adverse action against an employee based on – or after obtaining knowledge about – the employee’s social media statements or conduct, you should at a minimum consider whether that employee was arguably engaging in protected activity under a statute such as the NLRA.  
      • State Laws
        • Some states such as California, Colorado, Connecticut, New York and North Dakota, have enacted statutory protections for employees who engage in lawful off-duty conduct
  • Regulation of off-duty Internet Activity
    • Discrimination and retaliation concerns
        • For example, in many jurisdictions, a company may not discriminate against employees who are in the process of changing their gender, or who have already done so. The laws do not cover casual cross-dressing by non-transgender employees, however.
      • Whistleblower Laws
      • Political Activity Laws
      • Wage Disclosure Laws
  • Regulation of off-duty Internet Activity
    • Constitutional Right to Privacy and Free Speech
  • Online Live Demo
  • Final Comments and Questions
    • Of me…..
    • …..or our virtual avatars…..?
  • Thank You Charles Lee Mudd Jr. [email_address] Mudd Law Offices
    • Park City, Utah
    • 311 Main Street
    • P.O. Box 483
    • Park City, Utah 84060
    • 435.640.1786 Telephone
    • 435.603.1035 Facsimile
    • Chicago, Illinois
    • 3114 West Irving Park Road
    • Suite 1W
    • Chicago, Illinois 60618
    • 773.588.5410 Telephone
    • 773.588.5440 Facsimile