Managing staff who become social influencers: tips for employers

In today’s digital age, it’s not uncommon to find employees moonlighting as social media influencers. Recent research conducted by Finder found that 43% of UK staff have a “side hustle”.

The top three most popular side hustles are:

• selling old clothes on Vinted or similar
• A part-time second job
• Becoming a social media "influencer" on TikTok or similar

There is a delicate balance between supporting your team’s entrepreneurial spirit and protecting your company’s interests particularly if individuals are pushing out personal content that may compete with your own business or provides content that doesn’t align with your ethos or branding.

There are a number of steps that an employer can consider taking to mitigate any risk.

1. Risk management
Evaluate how an employee’s role as an influencer aligns with your corporate values and image. It’s important to consider whether their online activities enhance or potentially jeopardise your brand reputation.

Start by understanding the nature of your employee’s influencing activities. Open conversations can help identify potential conflicts of interest or areas which might pose a risk to the company’s reputation. It’s perfectly reasonable to ask your employee about the nature of their influencing activities. Make it clear that you are asking these questions so that you can consider any potential conflicts of interest or, to protect your reputation or brand. Is the influencer likely to be associated with your organisation? Do they have a public facing role? Is their image or profile included on your website or on other professional networks, such as LinkedIn, which identity you as their employer?

Staff who work with children or vulnerable adults need to be particularly careful about what they post or advertise.

A company’s social media policy should clearly explain that their personal social media profiles should not identify you as their employer, reference your organisation in any way or purport to speak on behalf of it. It should state that if your staff breach these rules, you can discipline them (and in serious cases dismiss them) even if your reputation hasn't, in fact, been damaged.

2. Review your contracts
Every employment contract contains an implied term that the employee will act in good faith and fidelity towards their employer whilst they remain employed. Generally, this means that they will not disrupt the employer's business, compete with it or disclose confidential information to other people outside the organisation. Although these implied terms also apply to anything the employee does in their non-working hours, decided cases suggest that courts will give the employee some “wriggle room” in terms of how these are interpreted. As such, an employee is unlikely to be in breach of their implied duty by working for a competitor in their spare time unless they are causing serious harm to their employer’s legitimate business interests.

An express provision in employees’ contracts requiring staff to seek approval before entering into paid or unpaid engagement is very beneficial. Without such protection employers may have a difficult time demonstrating that the employee should have disclosed the engagement in the first place.

For complete clarity, you may wish to identify in employees’ contracts which product groups or services are restricted to prevent potential conflict and protect your brand. You may also wish to consider including clauses such as:
• A requirement to tell you if they do any other work (paid or unpaid) whilst working for you; and
• An “outside interests” clause which sets out precisely what outside activities they can or can’t do whilst they remain an employee. This clause usually restricts individuals from undertaking work/engaging in activities which are similar to or in competition with your business although it could be extended to cover activities that could potentially harm your reputation.

3. Work-Life Balance
Unless a worker had opted-out, most workers should not be working more than 48 hours per week, on average. It is therefore important to understand how much time your employee is spending on influencing activities to assess any risk exposure under the Working Time Regulations 1998 and address any health and safety concerns.

Employees who are carrying out influencer activities may be more likely to suffer from mental health conditions including depression, anxiety or eating disorders which may also impact on the work they are engaged to do for you.

If you wish to take steps in relation to the above, Rollits’ employment team can provide you with guidance and support in managing any situations arising or predicted to arise and can assist with any review of contracts or preparation/review of social media policies.