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The workplace now has virtual boundaries – and employers must be quick to adapt. With the growing obsession over Pokemon Go, employees are inevitably playing the game during work, giving employers good reasons for concern. In a recent Forbes study, 70 per cent of employees polled reported they played the game at work, with one-third admitting to spending at least one hour doing so. In addition to lost productivity, security risks and potential liability for the actions of their employees, this should cause most employers to revisit their workplace technology policies or create new ones altogether.

What are the legal challenges faced by Canadian employers based on virtual gaming in the workplace?

Time theft

Most employees are already devoted to their smartphones while at work and they are seldom being used for any identifiable business purpose. Pokemon Go users will see their distractions rise to a whole new level. Those employees who spend an inordinate amount of time during working hours playing the game are technically 'stealing' their employer's time – accepting pay while not performing work, taking longer-than-scheduled breaks, claiming illegitimate overtime, or spending more time that is reasonably required to complete tasks. These employees risk disciplinary letters, poor performance reviews and, in extreme cases, time theft can be cause for dismissal, especially if prior warnings are provided.

In the first reported occasion of an employee being fired for using Pokemon Go at work, Walmart allegedly dismissed a supervisor for neglecting his duties in favour of the game. As Pokemon Go's popularity continues to rise, so will the number of ex-employees looking for new work. Employees should, therefore, concern themselves more about losing their jobs, instead of simply losing access to game while at work.

Data and security breaches

Not only is Pokemon Go being played at work, it is being downloaded on employer's networks and used on its corporate devices. To do so, users must provide access to their Google or Apple profiles and e-mail addresses which, for many employees, are linked to their business accounts. There are also reports that unofficial versions of the Pokemon Go app are being downloaded and used at work, providing cyber crooks with the ability to gain access to a user's phone or tablet and potentially access an employer's network and confidential data. Given the value placed on protecting confidential information and cyber security, courts are more likely to respect an employer's decision to discipline or fire an employee where his or her personal habits compromised, or even potentially compromised, an employer's network, trade secrets or competitive advantage.

Safety concerns

It's widely reported that some players of Pokemon Go have found themselves in dangerous scenarios as a result of being distracted or chasing Pokemon onto others' property. These concerns also apply in the workplace, where employers are responsible for the safety and wellbeing of their employees, especially those in safety sensitive positions. It won't be long before an employer is sued after a distracted Pokemon Go player is injured at or around the workplace.

Vicarious liability

Employers can also be held responsible for the actions of their employees and contractors who perform work away from the workplace, especially those companies that regularly send workers offsite to visit client locations. These employers could be liable for personal injuries or property damage caused by distracted employees performing a service call or delivery.

Privacy issues

Pokemon Go can record what users see and therefore employers must beware of privacy-based claims if employees are chasing Pokemon into secure workspace areas, especially those containing confidential client or employee data, or in the offices and under the desks of their colleagues. In addition to inadvertent disclosure of data, there is the potential for invasion of privacy claims filed by one employee against another.

After-work gameplay

It's not just Pokemon Go's use at work that can land an employee at my office seeking legal advice. There are numerous reports of players charged with trespassing and other misdemeanors. These employees can end up surfing the classifieds for a criminal defence lawyer, as well as for a new job.

In light of this growing list of potential concerns, employers should create or revise their technology and smartphone policies to address the use of virtual gaming apps in the workplace. These policies should prohibit downloading the app from an employer's network, registering through a company issued device or e-mail address and playing the game during working hours.

While it may be next to impossible to monitor every smartphone held by an employee, a properly implemented and consistently enforced policy is the gold standard when dealing with a new technology that permeates the workplace.

Daniel Lublin is partner at Whitten & Lublin employment lawyers, Toronto.