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#Bestteam #dreamjob #bestjobever #jointheteam. These are some of the hashtags that can be found in social media post from employees about their work. Or in other cases, employees may be happy to promote the products which with they are closely aligned as a result of their day job. If an employee also happens to have an extensive social media reach, then some employers might consider using this reach for their own company and its products. Using employees as influencers might seem like a way to advertise in an authentic and inexpensive way, but it is not without risks for employers.

Many employees regularly post about their employer’s products and offers on various social media channels. They are not necessarily heavily-followed influencers with thousands of followers. But as recent trends in social media marketing have shown, “micro-influencers” – i.e., individuals who have somewhere between 1,000 and 100,000 followers – can be very effective, especially when it comes to pushing out authentic content. 

Using employees as influencers has various advantages for employers: the “employer brand” can be advertised particularly authentically by individuals within its ranks, which ensures a generally positive perception of the employer on social media. In addition, a company’s marketing and/or recruiting budgets can be supported by way of such “free” advertising by employees. 

What are the risks of using employees as ‘influencers’? 

We are more familiar with the risks arising from social media activities involving “professional’ influencers,” no shortage of which have been accused of misleading advertising for their failure to explicitly disclose their relationships with brands and/or the nature of the products they are promoting to their hundreds of thousands or even millions of followers on social media. In the U.S., the Federal Trade Commission (“FTC”) has taken issue with these types of situations by sending letters to potential offenders.  

This same issue cannot be ruled out for employee “influencers,” especially since the risk of non-disclosure runs high, as many employees tend not to label their posts as advertising even if advertising laws in no shortage of markets require such disclosure. In the U.S., the FTC has established that while companies may encourage their employees to post about their products/services, employees must disclose their relationship with the company if they decide to do so in order to ensure that their followers understand the connection at play. 

Meanwhile, in Germany, the Act against Unfair Competition requires similar disclosures in order to ensure that consumers understand the nature of the content they are viewing. When a social media post has a commercial motive, it must be made clear on the post and marked as advertising. It does not matter whether it was posted by the employee in his or her private capacity. The employee does not have to be paid for the post either. As soon as there is a business character with advertising for the employer, this can be attributed to the employer and the employer will be liable for infringements, because it should not be able to hide behind a dependent employee.

In addition to the legal risks, there are very real public relations consequences when an employee influencer’s conduct on social media clashes with the values and principles of his/her employer. 

How to prevent employer liability with employee ‘influencers’ 

To avoid employer liability for undisclosed marketing materials on the one hand and to minimize other risks in connection with social media on the other, companies are encouraged to take preventative measures. Social media guidelines can be an important tool in educating employees about their roles/responsibilities when it comes to social media and minimizing risks for the company. Such measures may also specify employees’ duties, including making them aware of the company’s social media policy with clear guidelines, which also makes it simpler to sanction breaches of such guidelines. 

Employers should identify the risks of using employees as influencers in advance and then develop a strategy for dealing with social media. This allows employers to target employees as influencers and use their reach, but also make employees aware of their responsibility as influencers and prevent damaging behavior.

Sandra Fredebeul is an associate at Kliemt, where she provides ongoing employment law counsel for national and international enterprises.