Legal News

The rise of social media has created a new category of workplace risk: employees who are also influencers. Whether an employee has a few thousand followers or millions, content created outside of work can quickly become intertwined with the employer's reputation, confidential information, customer relationships, and workplace operations.

A recent article in the New York Law Journal examines the novel legal issues employers face as employees increasingly monetize their online presence or build personal brands through social media. As influencer culture continues to expand beyond celebrities to everyday professionals, employers should ensure their workplace policies evolve accordingly.

Unlike traditional social media disputes involving controversial posts, influencer-related issues often involve employees actively creating content that references their profession, employer, workplace, products, or customers. These situations raise a host of legal and business questions that many existing employee handbooks were never designed to address.

Some of the issues employers should consider include:

• Whether employees may identify their employer in influencer content.
• Whether videos or photographs taken in the workplace violate confidentiality obligations.
• Whether employees are using company equipment or work time to create content.
• Whether endorsements require disclosure of an employment relationship or compensation.
• Whether influencer activities create conflicts of interest or compete with the employer's business.
• Whether content could expose confidential business information, trade secrets, or customer information.
• Whether online conduct could negatively affect workplace morale or the organization's reputation.

Importantly, employers should recognize that disciplining employees for social media activity is rarely as simple as determining whether the content is offensive or embarrassing. Depending on the circumstances, employee speech may implicate protections under federal or state law, including laws protecting concerted activity, whistleblowing, political activity, or other lawful off-duty conduct. At the same time, employers generally retain the ability to enforce neutral workplace policies that protect legitimate business interests, provided those policies are lawful, consistently enforced, and supported by legitimate business reasons.

The increasing overlap between personal brands and professional employment means that organizations should revisit policies governing social media, confidentiality, conflicts of interest, intellectual property, electronic communications, and use of company resources. Managers should also receive guidance on recognizing when an employee's online activity presents a legal issue requiring consultation with Human Resources or legal counsel before disciplinary action is taken.

A proactive review of workplace policies today can help reduce legal exposure tomorrow while allowing employers to balance employee expression with business needs.

The broader lesson is that the line between an employee's personal online presence and the employer's legitimate business interests continues to blur. A proactive review of workplace policies today can help reduce legal exposure tomorrow while allowing employers to balance employee expression with business needs.

Outside Legal Counsel LLP advises employers, executives, and boards on employment law compliance, workplace investigations, employee handbooks, social media policies, and emerging workplace risks. 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 #WorkplaceCompliance #EmployeeConduct #InfluencerMarketing #HRCompliance

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