Turning your employees into influencers: Best practices

The marketing impact of influencers is widely recognized. The same holds for the role employees play in a company’s brand image. Hence, companies may be tempted to capitalize on both trends and invite their employees to be influencers.

While this marketing practice is becoming increasingly popular, it raises certain legal issues with regard to the employment relationship. If not properly addressed, these issues may undermine the benefits associated with employee influencers.

However, a few questions must be asked from a legal point of view.

Employment contract or service contract?

Under an employment contract, the employer can exercise greater control over the influencer’s activities, both upstream and downstream of the promotional campaign. As a matter of fact, given the subordinated nature of the employment relationship, the employer has the prerogative to give instructions to the employee on a regular basis as to the content of the promotional message and the way it needs to be delivered.

Furthermore, if the relevant legal provisions are complied with,¹ an employment contract enables the employer to have a certain degree of control over the employee’s communications to third parties and over the employee’s use of telecommunication tools.

However, such control comes up against the independence inherent in the service contract. Under such a contract, any excessive control would entail a risk that the services would be reclassified as an employment relationship.

It should also be noted that, when influencer promotional activities are carried out under a service contract by a person who is also an employee of the company, a similar risk of reclassification may arise if the promotional activities carried out under the service contract are similar to the activities carried out under the employment contract. Therefore, the tasks carried out under these respective contracts shall not be complementary or similar.

That being said, a service contract has the advantage that liability risks associated with issues such as misleading advertising or any other breach of marketing law² will in principle be borne by the influencer themself. Conversely, an employee’s liability for misconduct in the performance of their employment contract would be limited, since the employee is only liable in the event of fraud, gross negligence or repeated slight negligence.³

How should the activities of an employee influencer be structured?

While using influencers can create a greater sense of authenticity for consumers, the company should ensure that promotional activities align with its overall strategic message. This control is all the more important when influencers are also employees of the company, given the limitation of their liability mentioned above.

Best practices

To avoid any problems, certain practices are recommended:

• Define the communications channels to be used. In principle, employees cannot be obliged to create a profile on a social network, unless it can be considered a professional tool. Therefore, classifying a social network as a “professional tool” in the employment contract or in an addendum could legitimize the fact that the employer requires the employee to use it.
• Develop a social media policy. Such a policy is essential to provide an adequate framework for influencer activities, for example, to define a process of prior approval by the employer of content to be shared on social media. A communication policy can also be useful in defining what should not be shared or with whom. Appropriate restrictive covenants are also highly recommended in this regard. Ideally, the social media policy should also address the issue of what happens after the employment contract: for instance, content deletion or removal of any reference to company affiliation on social media.
• Developing a policy to monitor the use of telecommunication tools by employees. In this respect, Collective Bargaining Agreement No. 81 enables the employer to monitor the employees’ internet use and their use of other telecommunication tools, under certain conditions. Even though monitoring of the use of these tools can only be individualized under strict conditions, the possibility of carrying out this supervision can certainly act as a deterrent and help reduce misuse of telecommunication tools.
• Ensure that influencer activities take place during working hours. This is an important consideration since employer control or authority over the employee is, in principle, not permitted outside working hours. For example, the employee and the employer can agree on a number of hours per week or per day to be dedicated to the activities in question.

While we understand it may be useful for certain brands to turn their employees into influencers, this can only be done by ensuring that proper practices are in place within the company.

¹ And in particular the Act of June 13 2005 on electronic communications and Collective Bargaining Agreement N °. 81 of 26 April 2002 on the protection of privacy of the employees in relation with control of electronic on-line communication.
² See book V of the Belgian Code of Economic Law and the recommendations of the Advertising Council with regard to influencers, https://www.jep.be/
³ Article 18 of the Act of 3 July 1978 on employment contracts.