Legal News

More companies are encouraging employees to promote their workplace, products, and culture through TikTok, Instagram, LinkedIn, and other social media platforms. While these "employee creator" programs can be effective marketing tools, they can also create unexpected employment and compliance risks.

A recent Legal Intelligencer article highlights how employee-generated content can implicate a wide range of laws, including wage-and-hour requirements, the National Labor Relations Act ("NLRA"), Federal Trade Commission ("FTC") endorsement rules, anti-discrimination laws, biometric privacy requirements, and intellectual property rights.

For employers, one of the most immediate concerns is compensable work time. If a non-exempt employee is expected or encouraged to create, edit, post, or respond to social media content outside normal working hours, that activity may constitute compensable work. Employers should have procedures for recording and paying employees for that time.

Employers should also consider several other issues:

• FTC disclosures: Employees promoting company products or services may need to clearly disclose their employment relationship.
• Content ownership: Written agreements should address who owns videos, photographs, posts, and other content created by employees.
• Name and likeness rights: Employers should obtain appropriate authorization to use an employee's image, voice, or likeness in company marketing.
• NLRA protections: Social media policies should not improperly restrict employees' rights to discuss wages, working conditions, or other protected workplace issues.
• Post-employment use: Agreements should address whether the employer can continue using an employee's content after the employment relationship ends.

The broader takeaway is that employee-generated social media content should be treated as a workplace program—not simply informal marketing. Employers should establish clear written policies addressing compensation, timekeeping, disclosures, content ownership, confidentiality, and the use of employee images and likenesses.

As employee-created content becomes an increasingly important marketing tool, involving HR and legal counsel at the outset can help companies capture its benefits while minimizing employment, advertising, and intellectual property risks.

Outside Legal Counsel LLP advises employers, executives, and boards on social media policies, wage and hour compliance, employment agreements, workplace policies, intellectual property protections, and strategies to minimize employment-related risk. Contact us today.

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This newsletter is for informational purposes only, is not legal advice, and may be considered attorney advertising.

#EmploymentLaw #SocialMediaPolicy #EmployeeCreators #WageAndHour #FTCCompliance #IntellectualProperty

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