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

Written by
Kliemt.HR Lawyers, the first port of call in employment law for top-class and future-proof advice.
When an employee posts on social media about his or her employer there are potential benefits for the organisation concerned, but also risks. This article outlines points for employers to take into consideration when dealing with employee ‘influencers’. 

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You might see this kind of post from employees about their work on social networks. If an employee also has lots of followers (i.e. extensive social media reach), then some employers might consider using this reach for their own organisation. But what are the risks for employers in using ‘employee influencers’? This article explores the issues surrounding this new phenomenon.

People follow people first, then brands 

Many employees regularly post about their employer’s products and offers on various social media channels. They are not necessarily so-called corporate influencers (employees whose a social media profile is not based on their work for the company, but on their personal ‘brand’) with thousands of followers. Even ‘micro-influencers’ with few followers, who only advertise for their employer in their own circle, can be very effective, especially in recruitment

Using employees as influencers has various advantages for employers: the ‘employer brand’ can be advertised particularly authentically through the personal reference. This ensures a generally positive perception of the employer in social networks. In addition, the marketing / recruiting budget can be relieved if employees in professional networks support the recruiting and paid advertising can be reduced.

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

We are more familiar with the risks arising from social media activities involving ‘professional’ influencers, some of whom have been accused of covert advertising because they did not mark posts on their Instagram accounts as advertising.

This danger cannot be ruled out for employee influencers either, as they will tend not to label their posts as advertising. If they do not do this, but should have done so, then the employer can also receive a warning under competition law pursuant to s8 paragraph 2 of the Act against Unfair Competition. Competitors or consumer associations can also assert claims for injunctive relief or removal.

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 is the danger of an employee influencer’s conduct on social media creating problems for the employer. Social media thrives on an influencer’s communication with his or her followers. If, for example, an influencer spreads politically incorrect or ethically inappropriate content, his or her followers react. Where there is a particularly big misstep, it is sometimes even reported in the conventional media. This kind of scandal can have repercussions for the business connected with the ‘Influencer’ and represent a genuine PR disaster.

How to prevent employer liability with employee ‘influencers’ 

To avoid employer liability under the Act Against Unfair Competition on the one hand and to minimise other risks in connection with social media on the other, prevention is essential.

Social media guidelines can be an important tool in educating employees about social media and minimising risks. They can also be used to specify the employee’s duties. This means that employees can be made aware of policy with clear guidelines, but also makes it simpler to sanction breaches of duty. Covert advertising can be prevented and the impression that the employee is speaking on behalf of the company can be avoided.

Practical implementation 

Social media guidelines can form part of the employment contract, can be unilaterally specified by the employer or regulated by a company agreement.

Making guidelines a supplement part of the employment contract is easiest for newly hired employees. However, this means these rules are then fixed and cannot be changed unilaterally by the employer.

Social Media Guidelines that are unilaterally imposed by management pursuant to section 106 Trade Regulation Act give the employer much more flexibility. However, the employer can only specify the employees’ existing duties without expanding their scope. In addition, the employer must exercise reasonable discretion, i.e. also take the employees’ interests into account.

As a last option, social media guidelines can be introduced in companies with works councils as a works agreement. This offers the additional advantage that content subject to co-determination procedure (e.g. for technical facilities) can be clarified directly with the works council. In addition, employees are more likely to accept social media guidelines if the works council supports them. The disadvantage, however, is the reduced flexibility of a works agreement. This can however be counteracted at least in part by individual termination options for various areas of regulation.

Practice notes 

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 behaviour.

Sandra Fredebeul
Kliemt.HR Lawyers