5 Employment Law Considerations for Employee Advocacy


employee advocacy

Recognizing that their own employees are often their best ambassadors, businesses in many industries have been focusing on “employee advocacy” for marketing, business development and public relations. Neal Schaffer has written about, and provided excellent insight into, developing employee advocacy strategies. Other authors have also written about employee advocacy, however, rarely do these articles discuss any (or many) of the potential legal issues associated with employee advocacy programs.  As a result, below I examine some key employment law issues related to three phases in an employee-employer relationship:

1.  Pre-Hire and Upon Hiring:

a.  Social Media Background Check of Potential Employees:

Before hiring an employee, does your company go a social media check on potential employees?  Certainly if the person is being considered for a position involving employee advocacy, it makes sense that the employer will want to research what that potential employee is posting on social media, with whom the candidate is connected on social media, the quality of their posts (“Word Crimes” by Weird Al Yankovic captured the importance of being able to write correctly).

But performing this type of background check can be tricky.  Do you ask candidates for social media login credentials?  Do you have someone from the company “friend,” “follow” and/or “connect” with them in order to see their social media activity? Or do you simply search to see what is available publicly?  Do you hire a third-party to conduct these checks?  Each of these options raise legal issues.  Many states in the U.S., and many countries around the world, have laws prohibiting employers/potential employers from demanding social media login credentials.

Furthermore, there is potential liability for taking action based on information an employer finds about a prospective employee.  For example, the employer may learn information about “protected categories” including, medical condition, sexual preference, marital status, military service and veteran status, and a whole lot more.  Is your company at risk for being sued for allegedly refusing to hire a qualified candidate because the company learned of a protected category?  Be sure to take steps to minimize and avoid that risk.

b.  Ownership Issues Over the Candidate’s Connections and Accounts:

Before, or at the time of hiring, employers should make clear with the new employee who owns the social media accounts and connections/contacts/friends, that will be involved in the employee advocacy program.  Does the business expect the employee to simply use his or her pre-hiring personal accounts to help with employee advocacy, or will the employee and employer create new accounts and build connections?  Make sure it is clear that pre-hiring connections “belong” to the individual, and determine if the company “takes ownership” (or “leases”) those contacts during the employment term, and what compensation, if any, will be provided to the employee for access to contacts.  One example can be:  all contacts an employee has pre-hiring are the employee’s; but if the employee is required to build a new contact database during his/her employment, then those contacts “belong” to the business.  These types of issues need to be clarified at the inception of the employment relationship, not at the end where the separating employee may be leaving on bad terms.

2.  During Employment:

a.  Social Media Policies Are Crucial

A full description of a comprehensive social media policy requires separate posts.  However, some key elements include:

  • What social media platforms do employees have access to while at work?
  • Does access differ between employees participating in the employee advocacy program, and those who are not?
  • Does the company have in place a Non-Disclosure/Confidentiality Agreement or policy in place?
  • Are the requirements of the employee advocacy program contained in job descriptions or other documents so that managers and employees have a clear understanding of expected tasks and goals?
  • Do you have a clear and objective way to evaluate an individual’s success with the employee advocacy program so as to complete performance reviews?
  • Are employees paid or otherwise compensated specifically for social media activities and/or increasing connections (more salary, commission, bonus, or recognition)?
  • Are there other essential policies in place to ensure further legal compliance, including overtime, BYOD, and other related policies?

b.  Training and Implementation Can Be Complex

Policies (like blog posts) do no good if no one reads, understands, and implements them.  So, is your employer properly training participants in employee advocacy programs?  Training not only includes what type of content the employee should be posting, but also, regarding the policies above, and more, including use/misuse of logos, identifying customers/clients by name in posts, the difference between reaching out to contacts/potential contacts vs. spamming, noting when a post is the employee’s own option, and compliance with Federal Trade Commission and other government requirements.

3.  When the Employee Separates From the Company:

If the employer was proactive in the beginning of the employment relationship, many of the issues that could arise at the end of the employment relationship will already be addressed (including ownership of accounts/connections, wage payment issues, and post-employment confidentiality/non-disclosure.  At separation, companies should also address with the employee when the employee should alter their social media profiles to reflect their departure from the employer, what they will say about their departure, and whether they are allowed to proactively solicit clients and contacts away from the former employer.

Of course, the employer must have procedures in place to cut-off employee access to company accounts, email, and offices, and obtain company back from the departing employee, including laptops, tablets, smartphones, and client materials.

While I’ve distilled many of the key issues into one post, each of these issues are complex and should be addressed when setting up and maintaining an employee advocacy strategy.  There are certainly more employment law issues to add – what others has your company addressed?

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.  No attorney-client relationship is created via this website.

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About the Author:

James Wu

This monthly Social Media and Employment Law column is contributed by James Y. Wu. For over 15 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation’s leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University. +James Wu

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