Social media influencers are everywhere – TikTok, Instagram, even LinkedIn – and employers are taking notice. And it’s not just professional content creators and celebrities – everyday employees are also building followings and shaping opinions online, including in ways that directly implicate their employers’ brands. 

With social media giving nearly everyone the power of a platform, it is not uncommon for employees to have an online presence or a side hustle and companies are leaning into this trend – whether by encouraging employees to post content on social media in support of marketing campaigns, tapping into new channels provided by influencing, and in some cases even engaging their own employees as influencers to promote the employer’s products or services they help create and sell. After all, who knows a brand better than the people already working for it? While this can bring real benefits — from authenticity to broader audience reach — it also raises important legal considerations for employers, particularly around employee classification, compensation, and workplace policies as the line between work, influence, and outside employment is increasingly blurred. 

Engaging Employees as Influencers

Employee vs. Independent Contractor Classification

Engaging existing employees as independent contractors for brand-influencing work can create misclassification exposure. Courts and agencies apply multi-factor tests to determine employment classification status, and missteps can lead to significant liability and financial exposure. If an individual is already employed as a W-2 worker by an employer, treating them as an independent contractor for only a portion of their work can be problematic. Misclassification claims can trigger larger wage-and-hour claims, tax liability, and other risks. In addition, these types of claims often lend themselves to collective or class action lawsuits.

Wage and Hour Issues

Additional hours worked by employees “influencing” may trigger overtime obligations for employees classified as non-exempt and can alter eligibility for company benefits. It can also create heightened recordkeeping responsibilities and risk if time worked is not properly tracked and compensated, which can be problematic when the influencing work can be done away from the workplace and during non-traditional working hours.

Company Reputation and Brand Risk

Because employees are seen as representatives of their employer, their personal content can easily be viewed as the employer’s voice, blurring the line between individual expression and corporate/brand messaging. Although having clear company policies on social media use conflict of interest and brand representation can help set expectations, it does not eliminate risk entirely.

Consumer Protection and Privacy

The Federal Trade Commission (FTC) requires that endorsements are truthful and not deceptive, and it is critical that influencers clearly and conspicuously disclose any “material connection” they have with the brand they are endorsing. For an influencer-employee, this would require disclosures placed at beginning of a post or superimposed on a video, for the duration of the review, that the influencer is employed at the brand and is not just receiving some sort of compensation for the post. The disclosures must be easily understandable and difficult for a consumer to miss. Further, the FTC expects that the brand share responsibility with the influencer for ensuring that proper disclosures are made, including withholding a portion of the influencer’s payment to ensure compliance.

Side Gigs/ Moonlighting

Employees engaged in outside employment raise another distinct set of legal risks for employers. Traditionally, when it comes to employees taking on second jobs or outside work, employers have been concerned about conflicts of interest, reduced focus on workplace responsibilities, the disclosure of confidential or proprietary information, and working for competitors. 

At the same time, strict prohibition on outside employment may not be realistic in this present day, when more employees are developing side gigs or pursuing influencer opportunities – even though underlying risks remain.

Outside employment also can raise reputational considerations. For example, an employee may maintain an online presence — such as on platforms with adults-only content — that does not directly conflict with their “day job.” Yet, even if there is no obvious overlap with their regular job duties, employers may still be concerned about how this outside activity could negatively reflect on the company/brand, particularly if the employee is publicly associated with the company. Employers should have specific policies regarding outside employment, including side gig disclosure requirements, confidentiality provisions that protect company-related information (e.g., client lists and trade secrets), and restrictions on using employer resources (e.g., company devices and networks) for the employee’s side gig activities.

To address these concerns, some employers have adopted policies which either prohibit outside employment altogether or impose strict parameters on when and how it may occur. However, with evolving state restrictions on the use of non-competition agreements and as some jurisdictions are moving to limit blanket prohibitions on outside work, these company policies may come under scrutiny. For example:

• Since October 1, 2022, employers in Washington DC have been restricted from imposing broad noncompetition and anti-moonlighting provisions for certain employees.
• Since 2020, Washington State has restricted employers from prohibiting employees earning less than twice the minimum wage from holding second jobs, with only narrow exceptions. The Washington Supreme Court reinforced these limits in its January 2025 decision in Springer v. Freedom Vans LLC.
• Several other states, including New York, Illinois, and California, have enacted laws protecting lawful off-duty conduct. While not directly framed as moonlighting statutes, these protections limit an employer’s ability to regulate certain lawful activities outside of the workplace, which may overlap with outside work.

Both employee influencer programs and side gig employment reflect growing workplace trends that can present compliance risks well as broader legal and business considerations. Employers should monitor state-specific developments and consider how these trends may intersect with workplace policies and overall company needs and priorities.