Dear Littler: Are there any concerns about letting our employees post videos about our products?

Dear Littler,

I’m a marketing manager at a nationwide retailer. One of our sales associates is an aspiring “influencer” who asked if she could film a short video showcasing our new products for social media. This could be great advertising for our company, as we’re trying to gain ground with customers. Do you see any issues with this? 

           —Inquiring about Influencers

Dear Inquiring,

You are right to ask about this before proceeding! First, the Federal Trade Commission (FTC) requires individuals endorsing a product to disclose to the public if they have a “material connection” with the seller. Both the company and the employee can be subject to fines for failure to do so. There are a few options for making this disclosure: through an announcement at the beginning of the video, a legend conspicuously placed on the video, or in the video’s description or caption, so long it is visible without having to click to read “more.” Including this disclosure in the employee’s “bio” or the “about me” portion of their social media profile is not enough. The employee may state that they are not being paid by their employer for product endorsement, if that is accurate, but should be transparent about any tangible benefits they may have received (early access to products, discounts, etc.). 

Nevertheless, the employee’s posting may be viewed as her speaking on behalf of the company. On the one hand, the company can avoid this by ensuring its social medial policy requires that employees post only their personal opinions, and that employees make clear in their posts that they are not an official spokesperson. Conversely, the company may want to require the employee to allow you to review the video—and say yay or nay—before it is posted to be sure it reflects the image of the company and its products that you want to project. In that case, the company should have a separate agreement with the employee to lay out these standards, and to distinguish this work from their “typical” job duties.

Filming during working hours may also be disruptive to the workplace in addition to disrupting the employee’s own work. To avoid potential disruption, you may want to require filming during non-working hours or outside of the workplace (if possible, based on what the video will involve). However, if the employee is non-exempt this may require overtime pay for the time worked on the project, and you may want to consider limiting the time the employee can spend on doing this work. Even if the employee is exempt, they may seek extra compensation for “moonlighting” as an influencer, which is another reason to limit the time the employee spends as an influencer. 

Depending on the employee’s plans for the video, there could also be concerns about exposure of proprietary company information and customer and co-worker privacy. In this regard, you should review your company’s social media policy to confirm that it prohibits disclosure of confidential or sensitive company information, such as pending product development, marketing initiatives, and certain information about customers. Of course, you should ensure the employee is familiar with that policy as well. If the employee’s video may include co-workers or customers, you will want to consider requiring the employee to obtain their consent before filming.

In sum, with all these concerns you may want to consider retaining outside counsel to draft an agreement with the employee, or prepare updates to the company’s social media policy, covering the following points:

• The employee, not the employer, asked to film a short social media video showcasing the company’s new products.
• The company will not compensate the employee for making the video, inclusive of providing the employer with any type of employment benefit, such as a pay raise or change in job title.
• The video must disclose that the employee producing the video is employed by the company whose product they are endorsing.
• If desired, the employee must allow you, or someone else in the marketing department, to review and approve the video before it is posted.
• The video may not disclose confidential or sensitive company information, and the employee should obtain consent from customers or co-workers if they will be included in the video.
• Measures to avoid disruption in the workplace, such as filming the video outside of work hours.
• For non-exempt employees, the agreement should also specify how the employee will be compensated for work on the video. For exempt employees, the agreement should also specify if the employee will be compensated for work on this project, which is outside of their usual work.
• Clarifying the company’s expectations about the maximum time the employee should spend on this project, and that this project should not interfere with the employee’s work obligations.

In sum, Inquiring, this can be a fun new marketing strategy for your company, so long as certain guardrails are in place. The last thing you need is for your company to go viral for the wrong reasons.