(By Abhishek Sahu)
The debate over moonlighting took centre stage during the pandemic but the side hustles of employees on social media are getting some attention. The rise of social media influencers, especially on Meta-owned Instagram, has opened up avenues for employees to earn quick bucks through marketing while maintaining their job routines.
Instagram influencers are paid depending on the country, sponsor and followers they have. Users with less than 10,000 followers will make around $88 per post whereas this can be increased to $200 per post on average if they have less than 1 lakh followers, as per media firm Influencer Marketing Hub.
Earning money outside full-time employment needs disclosures as it may lead to a conflict of interest. For instance, an influencer who is an employee of an apparel company might get approached by its competitor for product promotion due to a large number of followers.
Another risk is damaging brand reputation. As seen in the Air India urination case, outside unruly behaviour may lead to the termination of employees. Experts also highlighted that employees’ attention and productivity may be hit.
The danger of employee-influencers
HR and staffing experts think employers soon will revisit their employment contracts to include what is permissible if employees tend to become social media influencers.
As employees-turning-influencers are technically not employed with another organisation and are pursuing it on their own, they aren’t necessarily breaching a standard contract, said Sachin Alug, CEO of staffing firm NLB Services. However, he feels this depends on the employers and the terms of service they follow.
“In case of a conflict of interest, there will be a need to revisit their contracts and make necessary amendments to prevent such instances in the future,” he said.
If an employee works for a sponsor who is a competitor of his/her employer, experts feel there is always a tendency of such influencers to erode loyalty like a two-edged sword.
“An employee-influencer knows internally what is happening and with all knowledge and information, he/she can develop and promote positive grounds with persuasion on more refined influencing lines in a particular campaign trail,” said Pratik Vaidya, MD & CVO of HR and staffing firm Karma Global.
What does the law say?
Guidelines issued by the Department of Consumer Affairs, Ministry of Consumer Affairs, Food and Public Distribution dated January 20, 2023, describe celebrities, influencers and virtual influencers on social media platforms as creators who advertise products and services with a strong influence on the purchasing decisions or opinions of their audience.”
At present there are no guidelines issued in the context of restricting the influencers from pursuing full-time employment along with their social media careers and mostly the guidelines talk about the mandates imposed on the influencers in the context of the disclosures which need to be made and the due diligence which needs to be conducted by the influencers, said Nitish Mawkin, Principal Associate at law firm Singhania & Co.
However, he said the employment agreements executed nowadays consist of clauses which restrict an employee to not perform any work for any other person/company or being involved in any other business activity without the specific prior written permission of an employer.
“If an employee has a conflict of interest or has developed during employment, it must be disclosed and any conflicts of interest while working for the organisation should be avoided,” he added.
Do’s and don’ts
India has at least 229.6 million active Instagram users, larger than any other country in the world, as per DataReportal. Further, the influencer marketing industry’s value is estimated to grow at a compound annual growth rate of 25 percent over the next five years to reach Rs 2,200 crore by 2025 from Rs 900 crore in 2021, the Influencer Marketing Report 2022 noted.
“Influencers are now embracing brands from various backgrounds that are more akin to their content genre rather than endorsing brands that are alike,” a 2023 report by influencer marketing platform Zefmo said.
To avoid any conflict with bosses at the workplace, Aditya Narayan Mishra, MD and CEO of CIEL HR Services, suggested employees must ensure that their brand and content align with their employer’s values and reputation. “This will help to avoid any conflicts of interest or reputational harm to the employer. They should avoid engaging with or promoting their current company’s competitors,” he added.
Mishra feels this is because the growth of moonlighting employees a few months back has alerted employers of employees engaging in activities outside. “It is important for employees who are considering becoming influencers to review their employment contracts carefully and seek permission from their employer if necessary.”
Besides, disclosure is important.
If an employer is permitting its employees to work as an influencer along with full-time employment, Suyash Srivastava, Partner, DSK Legal said it should have a robust policy on it wherein the do’s & don’ts are specifically spelt out.
“Employees should also be asked to make adequate and proper disclosures pertaining to their work as an influencer at the time of hiring,” he said.