Managing staff who become social influencers: five tips for employers
By Tiffany Heppell and Jo Moseley at Irwin Mitchell
Recent research by Finder suggests that 43% of UK staff have a “side hustle” to earn extra income. Gen Z are most likely to have second jobs, closely followed by those in gen X. One of the most popular side hustles is becoming a social media influencer on TikTok or on other platforms.
You may not be particularly bothered if your staff make additional money by selling old clothes on Vinted or walking other peoples’ dogs in their spare time. It’s unlikely that anyone will link them to your organisation and, even if they did, it’s hardly going to harm your reputation. But different considerations apply where staff push out personal content via social media which promotes products that compete with your own or provides content that doesn’t align to your ethos or branding.
How do you deal with these issues? Do employees have to tell you if they have another job? And can you restrict what they do in their spare time?
If you find out that a member of your staff is promoting themselves as an influencer, we recommend that you:
1. Treat influencing as a second Job
Start by asking more questions about the employee’s influencer work, including who they represent and how they are compensated. 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.
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?
2. Don’t rely on the duty of fidelity to protect your interests
Unless your staff have agreed in writing not to work for any other organisation either during or after their employment ends, they are generally free to work for other people or on their own behalf in their own time. However, 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. Therefore, in the absence of an express clause limiting an employee’s ability to work elsewhere, you are likely to find it difficult to rely on the implied term of fidelity and good faith to prevent an employee working for a competitor, or setting up a social media platform, if there is no obvious risk of harm.
3. Get the contract right
To protect your business, ensure that you include the following clauses in your employees’ contracts of employment:
- 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 employed
The outside interests clause can either impose a blanket ban on all outside business activities or be more specific. For example, it might only restrict the employee from engaging in activities that are similar to or in competition with your business or could, potentially, harm your reputation or promoting certain products.
You will only be able to enforce these sorts of restrictions to the extent they are necessary to protect your legitimate business interests, taking into account the level of seniority of each employee, the level of confidential information to which they have had access, their role and the potential risk to the company. You therefore need to tailor restrictions to each employee rather than implement a one size fits all approach.
We recommend that you periodically review and update these clauses to reflect any changes in your interests or in the employee’s role.
4. Could influencers damage your reputation?
That will depend on whether they are identifiable as one of your employee’s and the type of products they are promoting or the content they are producing. For instance, you might want to restrict the promotion of certain, controversial products (e.g. diet pills) or the way in which a product is advertised if it conflicts with your brand or ethos. Staff that work with children or vulnerable adults need to be particularly careful about what they post or advertise.
Your social media policy should clearly explain to your staff 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.
5. Consider how many hours they are working and the impact on their health
As with any employee with a second job, you should make sure that they comply with the Working Time Regulations 1998 and address any health and safety concerns. Unless your worker has signed an opt-out they shouldn’t work more than 48 hours per week (on average) and should take adequate daily and weekly rest breaks. That said, these restrictions only apply to other employed work. The WTR don’t apply to self-employed contractors.
Employees who work as influencers are likely to face significant on-line abuse – both in relation to how they look or what they are promoting. The potential of online abuse can lead to mental and physical health issues, including depression, anxiety, body dysmorphia and eating disorders which may also impact the work they are engaged to do for you which you then have to manage.
We can help
We have experience in helping organisations navigate this tricky area. Please contact Tiffany Heppell if you’d like to know more.
