How to Pay Employee Advocates and Content Creators Fairly with Heather Bussing

Heather Bussing (00:00)
Let's start with what we don't know about this. Most of these videos are being made by sales associates, retail employees, because they're the ones on the ground and they're the ones who know the product and they're the ones who really good at this stuff. I mean, it really comes down to control. They're going to continue to do this work as employees unless they meet that requirements as a contractor. There is a common law doctrine called work

for hire, which means that if someone pays you to create something and you give them the thing that they paid you to create, they own it.

Rhona Pierce (00:36)
12 year old baby picture is still out there because she didn't tell them that they couldn't use it forever.

Heather Bussing (00:41)
and they may be able to ask you to take it down, but it would be a contractual provision rather than a practical.

Rhona Pierce (00:49)
If your employee films a TikTok and gets paid for it, is that a bonus or a wage law violation? As more companies tap employees to become creators, the legal gray areas are piling up. Today, we're digging into what happens when content creation becomes part of the job. And let me give you a quick rundown of my inspiration or what sparked this episode. So Ulta Beauty, one of the biggest names in retail,

recently launched their Ulta Beauties program, an internal influencer initiative where store associates can apply to become paid content creators for the brand. If selected, they receive content briefs, perks like meta training and PR packages, and compensation, either while on the clock or per deliverable. And I love that they're paying their employees. It's a smart move for brand authenticity.

But legally, it opens up questions about classification, time tracking, compensation, and even content ownership. And you guys know your gal isn't an expert in compliance. I might even be allergic to it. So I invited one of my favorite employment lawyers, Heather Bussing. Heather, welcome to the Workfluencer podcast. For those who aren't familiar with you, can you tell us who you are and what you do best?

Heather Bussing (02:02)
Thank you!

So I am a California employment lawyer. And what do I do best? I probably, I don't know. What I love doing best is writing and photography. But I'm also a pretty good lawyer.

Rhona Pierce (02:23)
An amazing lawyer, of, think, one of the most respected voices in employment law because I love how you break down complex topics that, like I said, I'm allergic to in ways that are very easy to understand and like normal English, not legal English.

Heather Bussing (02:45)
That is like the best compliment you could ever give me. It really is. It really is. Because that's what I try to do is make things understandable.

Rhona Pierce (02:56)
Amazing. So, ⁓ Ulta's program, by the way, I want to stress this. I absolutely love that they're doing this. I love that they're paying their employees. I love that they're doubling down on employee advocacy because we know that that works. And their program offers compensation both on the clock and per deliverable. Like they can choose. How should companies think about classification and tracking in that kind of setup? Is there like a best practice?

Heather Bussing (03:27)
Well, I'm sort of allergic to best practices because every situation is different and you have to look at the facts and what are, you know, what and who are involved. So, let's start with what we don't know about this. Okay, so we don't know how much the compensation is.

We don't know exactly really how much control Ulta has over the actual content that gets developed. I'm sure they have complete control about whether it goes live or not, right? Because they are taking it over and putting it out there. So what we do know is that

Most of these videos are being made by sales associates, retail employees, because they're the ones on the ground and they're the ones who know the product and they're the ones who are really good at this stuff. And it's what makes it genuine and ⁓ engaging and believable, which, you know.

Rhona Pierce (04:35)
That's the real benefit of the marketing side of things.

Heather Bussing (04:40)
No, it's genius. It is absolutely genius. So and we don't know whether they're paying this as a side contract or as part of their ⁓ actual wages. But the big, big issue is classification first, first and foremost, the default and to every, every time you ask

Is someone an employee or a contractor? The default answer is they're an employee unless you can prove they're a contractor. So there's no, it's not a, let's just choose one because that's good. You have to meet the conditions for being a contractor, which requires a lot of independence and autonomy. I mean, it really comes down to control.

And so given what we do know so far about this program, I would say that Ulta probably has enough control and there's training about how to do this. And they would want rejection rights over the content. mean, this is, it's probably not actual contract work.

And even if it was, there's another problem, which is that these people are already your employees. And so you've got a double default to employee status, right? Because one, the person already is. And the second one is that ⁓ they're going to continue to do this work as employees unless they meet that requirements as a contractor. And I don't.

I don't have enough to know for sure, I would say they're probably employees and should be paid as employees.

Rhona Pierce (06:46)
Yeah, and I think a lot of this really sparked ⁓ as I was having conversations when I saw this initiative that they're doing in this program, because it's like, well, I'm thinking like me, I am already a content creator, and I've worked at companies, and I've never they've never owned my content. They've never like shared it. I've never given them a video for them to share. Well, I shouldn't say never because now that I'm thinking about it, yes, there's some companies with videos of me.

out there. But it's like it was was always understood that I owned the content that I created. And I wasn't getting compensated extra for it. So they really couldn't. They don't have a say, right? ⁓ Well, I guess they could. But are they really going to go after that? But then I thought, well, now that they're paying you, I'm sure that they are going to want to have a say, especially in an environment with like, I think there's higher turnover. ⁓

Actually not at Ulta. I go to my local Ulta almost every week. Those girls have been there for a long time. But yes, it's a higher turnover type of industry. So I started thinking like, are they making the... It's great that they're paying them, but how much are they paying them? Are they paying them the same thing that they're paying another influencer? Because in essence, these people are better for your brand than an influencer.

Because like you said, they know the product and everything. that's really what started. was like, okay, all of these questions, all of these HR questions started going in my head after the initial like, this is cool. And then my other thing is most of these employees we know are non-exempt employees, right? So if they create content off the clock and it's paid per deliverable, because they're able to choose if they want to get paid hourly on the clock or off the clock per deliverable.

Does that raise overtime concerns? Like how should employers handle that?

Heather Bussing (08:47)
Right, non-exempt employees, you know, in California, if you work more than eight hours in a day, it doesn't matter how many hours you work in the week, you're entitled to overtime. And that would be true, no matter whether they choose to be on the block, on the clock, or they choose a flat rate per video. They're non-exempt.

they're working as employees, you should track their time. And if they are entitled to overtime under your state or local law, they need to be paid over time. So that's a huge issue. And then the second issue that you raised is who owns the content. And there is a common law doctrine called work for hire.

which means that if someone pays you to create something and you give them the thing that they paid you to create, they own it. And that makes sense.

Rhona Pierce (09:50)
If you've made it this far into the episode and you're not subscribed yet, now's a good time. Unless otherwise specified where a lot of content creators like myself and people who do this, then we go into there's always that clause in our contracts where the rights, the usage rights and how long you get to use this and all of that. it's like, to me, it's like our employees being trained on this whole other world of how this works because

And I know from one of my early, early content coaches, the reason why she, she stresses this is because many, like 12 years ago, she had her son do a photo or something for Target. And he still, this now 12 year old baby picture is still out there because she didn't tell them that they couldn't use it forever. And they're still making money off of that. And she's not. So all of these things were like,

I was like, wait, there's all of these questions. Are the employees really getting to know this? And then I'm curious on the contractor angle, right? Because if you're building your personal brand as a creator, there might be tax advantages to getting paid as 10.99 instead of just having it added to your W-2. Can companies actually do that?

Heather Bussing (11:14)
Probably not. ⁓ Because one, this person is already your employee. And if you start sending out documents that show that they're doing both, ⁓ somebody is going to raise some questions. It's like, how does this work? And then we go back to the, is this really a contractor analysis? Yeah, it's...

You know, I would not do it that way for existing employees because I think you risk misclassification issues. I the truth is, is that our state and federal governments run on payroll taxes. It is a steady form of and reliable form of cash flow. And ⁓ they like those payroll taxes coming in. They

do not want to see people going off as gig employees and contractors because they, know, cashflow is much weirder and there are fewer resources when you're in that position and taxes are not your priority often. ⁓ And so, you know, things get delayed or scrambled together at the last minute or, or, or, but, ⁓ you know, that's

That's the reality, the financial reality from the government standpoint.

Rhona Pierce (12:46)
Yes. These employees, they're also receiving. So the way I understood the ALTA's program and they actually, they have a very limited description of the program online for the public and they tell their employees, you can see more in their intranet. I tried to get my BFFs at the local ALTA to show me the intranet one and they are

very well trained kudos to Ulta. They said, absolutely not. cannot show you that. So kudos to them. I'll keep trying to find someone at Ulta who can tell me more about it. But what I know is that these employees are receiving content briefs and like specific deliverables, just like if it were an influencer, right? Just like a freelancer. Does that level of structure impact how their role should be defined or classified at that point?

Heather Bussing (13:43)
Probably not. Okay. Because, ⁓ you know, that those factors demonstrate control rather than demonstrate autonomy. So, you know, when, when, when you hire someone to do a job, you generally give them, here's what I want at the end. And, and the level of detail there varies depending on what the work is and what's going on for marketing stuff.

There's usually some level of detail because you have to convey brand and messaging and topic. so all of that's fair game for either employees or contractors. And it doesn't really tip the scales one way or another. But the more the hiring party is involved in what's being created and how it gets created, the more that argues that

they have control.

Rhona Pierce (14:44)
And it falls under the other duties as assigned at that point. We all love. So when two associates have the same job title, but one is now being paid to create content and the other isn't, how does that affect our lovely pay equity and role clarity that we've been working so hard for?

Heather Bussing (15:05)
Well, you know, they're not doing the same work anymore. And so so you have to do a different pay equity analysis based on what the skills, effort, responsibility and working conditions are for each person. And and if you start pro rating, you know, I mean, that's one way to do it so that you're actually comparing the work with the work and the pay with for that work, even though this person is only doing it part time now.

But when you add in the content here, this person isn't doing that and so they're not comparable. So you, you know, it messes up your pay equity analysis. It's possible to do it, but it creates another layer of analysis.

Rhona Pierce (15:55)
I'm sure a company as big as Ulta sat down and thought about a lot of these things that we're talking about. And we're just talking about it from the outside, right? on the surface, programs like this seem like a win-win. I really, I firmly believe they are. I want to stress that. But what are some of like, other than what we spoke about hidden, like compliance risks?

that companies might miss if they move too quickly, if they don't sit down and have these conversations before launching something like this.

Heather Bussing (16:27)
Well, the wage and hour stuff is the big one. Misclassification and wage and hour. I'm sure that ownership of the content goes to Ulta and that that is wrapped up tight because there's so they, you it would be true by default. And I'm sure it's especially true by contract because if I was Ulta, I would make sure that I owned it and had control of it.

Rhona Pierce (16:52)
Some of these associates are posting on their personal socials as well. Who owns that content then? Because a lot of what they were saying in an analysis from another creator was that some of these employees are actually seeing benefits where their audience is growing. They actually have access to some of other Ulta's brand partnerships.

which is great that they're opening that up for them. So now they're able to monetize their brand while creating content for Ulta. Who owns that content? Like if you decide to leave your job, can they tell you take all of that down?

Heather Bussing (17:35)
Not on your accounts, ⁓ especially if you're pretty clear that it's your personal account. But the general rule is that, yeah, you can share personal stuff on your personal account, and you can share worky stuff on your personal account, but you control what goes on your personal account. Now, you still don't own the...

content that you posted there, they would continue to own that. And there's probably some sort of provision in the contract about control and use of it. And they may be able to ask you to take it down, but it would be a contractual provision rather than a practical thing.

Rhona Pierce (18:25)
and on the flip side as an employee, because I know this has happened to me when you leave a company and you no longer want to be associated with them for whatever reason. And now they have all of this content of yours. Quick break. If you've been thinking about starting a podcast, but don't know where to begin, I've got something for you. I'm letting woman in TA, HR or employer brand take over the workfluencer podcast for one episode. am so excited.

Heather Bussing (18:54)
to be able to do.

Rhona Pierce (18:55)
to

a podcast takeover and I'm joining Rona Pierce today as a guest host. Rona is the creator of the Workfluencer podcast. You get a behind the scenes look at how I plan and produce everything. I handle all the editing and you walk away with a fully edited episode, social clips and the audio to launch your own pod if you want. If that sounds like your kind of test drive, head over to workfluencerpodcast.com to apply.

How do you recommend employees handle that? what should they be prepared to when signing these agreements with companies?

Heather Bussing (19:32)
Well, mean, employees don't have any bargaining power, you know, except to say yes or no to whatever the contract says. And to some extent, contractors don't either. I mean, I have been in numerous conversations over form agreements, you know, where somebody wanted a consultant to have...

$10 million worth of liability insurance, you know, in case somebody tripped and fell during their presentation. I mean, it's like crazy. So, the contracts are thoughtful and they have considered some of these things like time, know, you could ask that your content

no longer be used after X amount of years. So that would be one way that employees could limit it.

Rhona Pierce (20:35)
And I know that employees don't have like true bargaining power, but I do think there is, there's ways, especially when companies are reasonable. And I think a company doing this already and offering to pay is already a reasonable company. think there are ways where employees could, like you said, say like, okay, ⁓ let's decide how long this content can be out there and just learn from what influencers are doing because yes, people.

make money off of this content that you create and you should be compensated for that. And there are different ways and the creator economy is growing and there are different ways, but there are people who get paid a ton of money upfront and that means the company can use it forever and ever. There are people who get paid less upfront and have maybe an affiliate link and keep making money off of that forever and ever as long as it's used. And there are people who get paid mid

amounts for them to use it for a defined period of time. And if they want to keep using it, they have to keep paying you for extending the contract. I think a reasonable company would be able to come to an agreement with an employee of like, which one of those three areas do we fit in? Are we paying you a whole lot upfront and we own it, ⁓ which is an investment? So I think employees should be able to have those conversations. Do you agree?

Heather Bussing (22:04)
do agree. if what you're thinking about is doing content creation going forward in your next iteration, ⁓ it's important to think about, am I going to want these things in my portfolio? Am I going to want to use them? And in those cases, you want to make sure that you have a license to use it that is not restricted or is restricted in a way that you can live with.

and it's worth reading up on copyright and license and.

stuff. It's complicated because these laws were designed for an analog reality where there are limited copies and limited production and distribution. And that's not our reality anymore. We have unlimited copies and production and distribution and nobody can control where things end up.

Rhona Pierce (23:07)
Do

Heather Bussing (23:07)
It's tricky.

Rhona Pierce (23:09)
you see those laws changing anytime soon? Or does something like really big have to happen so that then there's this precedent in this big case?

Heather Bussing (23:19)
Yeah, well, something really big is happening, which is AI is eating everything and things are getting recycled in ways that may not be fair use. ⁓ and there are companies that are deriving tremendous

monetary returns, having used all of this copyrighted material for training data. And so that's going to be a big deal. And, and we're, you know, we're starting to see AI break IP law, and it was inevitable, it was inevitable, you know.

The minute the Xerox machine was invented.

Rhona Pierce (24:09)
I mean, now that you put it that way, it's actually true. And I'm remembering some things that have happened in that I've experienced in my life where it's like, ⁓ yeah, people are making photocopies of someone's entire book ⁓ because the book isn't available. I remember that happened once in my college. And I was like, Professor, I don't think this is a thing that's supposed to be happening. I was that person. ⁓

But with AI, mean, that's literally what they did. They went and they got your information that's all out there because we were all very happy putting it all out there. AI was trained on that information. And now new things are being created based off of that information that no one paid you for. And it wasn't really owned by them. So, yeah, I agree with you. Big things are already happening. I guess we'll see.

Heather Bussing (25:06)
And what constitutes a transformation under those circumstances? mean, nobody knows. Nobody knows. And so it's going to be a fascinating thing to track. And there has to be some sort of happy medium because, you know, like the record industry has been unbelievably aggressive in protecting its

rights and dividing its rights into multiple royalty streams. And to some extent, that's gone too far. And then copyright, you know, is in the United States Constitution. It's actually in the Constitution. But it says it's for a limited time. And ⁓ Congress keeps extending that time.

And so is it really forever or is it practically forever or, you know, where do we draw the line? And these, these are policy and, you know, equity questions. What is fair under the circumstance? You know, who's creating what, what value are they providing at that point? What makes sense here? And it's not just about, Hey, that's mine.

you can't have it. ⁓ It's a bigger policy question.

Rhona Pierce (26:35)
And one of the reasons why I was excited to talk to you about this is because you are also a content creator. So in addition to being a lawyer, understanding the law, working in this, you're a content creator. So I think you can put yourself in the shoes of like, this is a very lucrative or it can be very lucrative. And I think my thing was more, we making sure like companies always jump on things.

when there is a bigger benefit for them, let's be honest, that's really it. So my thing and my goal with this episode is to make sure that as HR teams and marketing teams are implementing this, we're not taking advantage of our employee creators. So if a company wants to try something like this tomorrow, like what's the very first thing?

that you would recommend that they do and like putting yourself in the shoes of a lawyer and a content creator.

Heather Bussing (27:36)
Yeah, well, I would assume that these folks are non exempt, but you may have some people that are exempt. mean, I'm exempt in the work that I do, whether I'm an employee or because I have a law degree and a license and a lot of autonomy and the people directing me usually can't do what I do and, but not always. so I would

treat it as though they are non-exempt employees and that this is actually the work. It is considered the work that they are doing. And that's important because they need to plan their day. And if their manager is not involved or on board with the whole content creation aspect of the job,

Everyone's expectations need to be set realistically about what this person is going to be doing so that you don't end up having this extra cool work backfire in their real job. ⁓ And if you are hiring retail employees who are physically on site with said hours, you've got to do your workforce management and your time and scheduling to

to work around that. So it gets complicated fast, but you have to pay attention to it, you know, from everyone's perspective so that what you want to happen happens.

Rhona Pierce (29:14)
And now on a different perspective for so most of the audience for this show are HR, TA, employer branding. Employer branding, I think is probably exempt from the question that I'm going to ask. But most of us are exempt employees. ⁓ And most of us are not paid extra to create content, but highly encouraged to do it because companies understand

the benefits of it. How should we go about that? Should we be asking as TA and HR people to be compensated for this? Should this be part of our job?

Heather Bussing (29:56)
Yeah, I mean, that's a conversation. But anywhere that you can show that you are bringing value and actually put money numbers on that is a very persuasive argument for more money for you because you're creating it. And it should probably be part of your salary. If you're non-exempt, you could also pay it as a

a flat fee extra thing without worrying about overtime or the hours spent. So you could do it either way with exempt employees. But ⁓ those are the issues. And then you have to really sit down. Anytime you change something that people are doing, you have to sit down and think about what is the work. What counts? What doesn't count? Because

You can't ask people to do extra stuff and then penalize them because they're doing it.

Rhona Pierce (31:01)
Yes, yes. And it's funny, think our like my HR brain went this way. Because not only mine, right? Other people have these questions of like, yeah, this is very cool that they're paying their employees. But what happens here and like, a lot of people use this type of conversation as

a way to justify not paying their employees extra for this because it's too complicated and can get in muddy waters. And I think we need to move away from that and actually compensate people for anything extra that they're doing. And if it becomes part of the job, yes, pay extra for that too, because a recruiter who doesn't post or create content

and a recruiter who does, shouldn't be the same job. At that point, I think you should get into recruiter one and recruiter two or whatever you want to call it.

Heather Bussing (32:08)
That's reasonable. I mean, that's reasonable if that's what the expectation is and that's what the work is and that's what the person is doing and you can see the benefit, you know, and it, it.

Proving your value is the job of every single employee and there are lots of ways to do that and we don't think about it because we think that if we just show up and do a good job and work hard, ⁓ someone will notice and we'll get more money.

Rhona Pierce (32:37)
And that is not how it works. That is absolutely not how it works. And I love that you called it out. It's something that I've said because I, and I think from experience, I thought that at the beginning, I would be like, yes, if I do this, this and this, and it's like, no, that's not how it works. I learned early on in my career that if you want more money, you have to open your mouth and say, you want more money. There's literally only been one job I've ever had.

Heather Bussing (32:39)
True!

Rhona Pierce (33:07)
where I constantly got raises when I did new things that weren't prompted by me. But it was because I had an amazing, amazing CEO, shout out to George, if you're listening to this, who literally would see, Rona is doing more, we have to give her more money. Also, I think I came in at way less than what he expected to pay me. So that's why he could keep giving me extra money all the time. in most cases, you don't get

paid more for doing more without asking for more. So I've enjoyed this conversation. It's a little different from the typical ⁓ episodes for Workfluencer, but I think it's a conversation that was worth having as people try to implement these programs. Is there anything that I haven't asked you that you think listeners should know?

Heather Bussing (34:00)
No, I mean, I'm right there with you, though. I think these are amazing opportunities and you just have to do it right. It's not that hard. It's not that hard. I, you know, if you're dealing with non-exempt employees, track their time and make sure you're paying over time and you'll be fine.

Rhona Pierce (34:25)
Exactly. literally that simple. ⁓ Where can listeners connect with you?

Heather Bussing (34:32)
The best place to find me is on LinkedIn. It's Heather Bussing, B-U-S-S-I-N-G. I think there's only two of us in the United States. And the other one has to be really mad at me because I've captured all the domains and usernames.

Rhona Pierce (34:49)
That is amazing. So I'll continue having this conversation around compensation for employee advocacy programs. I have a few more experts that I'm inviting to have this conversation from different perspectives. Awesome. Yeah. So please keep an eye out for those future episodes.

I know I'm going to name the series something. I just don't know the name for the series yet. So keep an eye out for the to be named series on how to compensate your creator employees. Thanks Heather for being on the show and thanks everyone for listening. Thanks so much for listening. If you're enjoying the workfluencer pod, share it with someone who's changing how we talk about work or who should be. And hey, if this episode gave you ideas or inspiration,

Leave us a 5-star review. Reviews help other listeners find us. And honestly, it makes my day. Workfluencer is produced by Perceptible Studios. Learn more about how we can help you use video to attract, engage, and retain qualified talent at perceptiblestudios.com. Thanks for listening and I'll chat with you next week.