In this episode of In-Ear Insights, Katie and Chris tackle a key, undiscussed problem with influencer marketing. In three states in the United States (California, Washington, and Pennsylvania), companies are prohibited from discriminating against contractors with the same level of protections as employees. When companies choose influencers, how rigorously are they screening against bias and discriminatory practices? Listen to the full episode to learn some different perspectives on influencer selection.
Disclaimer: Neither Katie or Chris are lawyers and this podcast episode is not legal advice. Contact a qualified attorney for legal advice before making any decisions that may expose your company to risk.
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What follows is an AI-generated transcript. The transcript may contain errors and is not a substitute for listening to the episode.
In today’s episode of In-Ear Insights, what you’re talking about bias and independent contractors now, to set the stage, one of the things that we do a lot in marketing is choose influencers, we go out and find an influencer, who is relevant to our product or services, and we want to try and engage them to get us to help build our brand. And we were discussing recently in one of our team meetings, and then in our slack group analytics for marketers.
Do we need to be thinking about in our in the software we build for it for identifying influencers? Do we need to be thinking about bias, do anything about gender bias, race, spies, etc, things like that? Because there is the very real possibility that will end up with a whole bunch of people who are so this homogenous cluster, we did some research and found that within the United States, at least three of the 50 states require companies to apply the same laws for non discrimination for contractors, as they do for employees, the other 47 states and at the federal level, do not. So Katie, from your perspective, as a business owner, who has to be compliant with the law, what are the best practices for influences? They don’t work for you? They are independent contractors, they are in many cases, vendors. But how should we be thinking about this?
Well, first and foremost, I think, you know, as a business owner, it’s my responsibility and the responsibility of others to get up to date on the latest laws and regulations. And so that would be some dude, doing my own due diligence, doing some research, or even talking with my legal team to find out, Hey, what’s going on these days? Like, what are the things I absolutely have to comply with. But just in general, it’s a good best practice to be thinking about making sure that your pool of influencers is diverse and representative. Now that said, that might not be possible by on the type of influencer, you’re targeting. And, you know, Chris, your point, you know, if it’s a 1099, if it’s a vendor, I, you know, I think that the rules are changed. So number one is sort of, like get up to date on the rules as they apply to you, your business, your industry, and your state. And that, you know,
that’ll take a little bit of time, but you want to make sure that all of those boxes are checked first, before doing anything, which means making sure that you’re planning out a little bit farther in advance, allowing for more time versus, you know, waking up one day and going, I know, let’s do some influencers, and then hoping and praying that you can get it all set up by the next day, that generally doesn’t work all that well, even if you’re not trying to follow legal compliance.
And then the next best practice is to sort of outline, what are your goals? What are you trying to accomplish with this set of influencers? What are the what’s the audience that you’re trying to reach? And that will start to dictate the type of influencer you’re going after. So when we were talking about this previously, one of the things we talked about was the fashion industry.
And so, anecdotally, I believe that that one skews a bit more towards the female gender. Now, I could be wrong on that. But I don’t have the data to back it up right in front of me. But from what I know, it does skew towards more female. So if you’re trying to gender balance towards more male, you can do that. But then you might run the risk of getting a influencers who don’t have have as high quality or as high reach as some of the more seasoned female influencers. That’s just one example. So figure out what your goal is with using influencers who you’re trying to reach. And then you can start to understand, do I need diversity?
within my influencer pool? What does that look like? What would that mean, to our company, specifically, to our goals to our audience, because it’s not going to look the same for everybody?
Generally, though, at least in today’s socio economic and political environment, isn’t the answer. Do we need more diversity? Almost always? Yes.
It is. But then you take when you start to pick apart the actual term diversity, that’s going to mean something different to each situation. So it might be as simple as male, female, but then you can start to go down those more complex roads of it goes beyond just I need male and female or I need, you know,
Caucasian and non white influencers? Like it’s not generally going to be that straightforward. Ideally, it would be but it’s certainly not. And it’s also really difficult to assume
how somebody is identifying, you know, without really digging in doing your homework on what all of that means these days?
Do you feel like there’s a additional risk and or compliance issues if you use software to attempt to ascertain someone’s race or gender and when you
storing that data? Absolutely, I feel like that’s a huge risk.
First and foremost, being that we as humans, whether it’s conscious or unconscious bias are the ones programming the software. And so, you know, this is something that you and I’ve talked quite a bit about in other episodes, that were just as, as humans, we’re not sophisticated enough yet to program unbiased software, there’s always a little bit of that unconscious bias in there. And so it generally takes more than one person to start to determine, you know, how a set of influencers are identifying, and then you would actually just want to have a conversation with the influencers themselves that you’re trying to identify. And that is the human to human thing. That’s not, I mean, you could probably program a chatbot or something like that, or a survey, to sort of start to ask some of those questions, but you really can’t, in this situation, replace a human to human conversation.
So this whole conversation actually got started when we were discussing our efforts internally to build a much better influencer model for Instagram. And one of the key factors we were talking about early on was what kind of filters and choices does the software make, because at that point, it’s no longer a human decision. Once you build the software and you create a system now, whatever your your biases are, or your perspectives are, or if you don’t attempt to filter for bias, the system just kind of pulls the data that it has. And then you could be either creating are reinforcing systemic bias at scale. How important is it for vendors of influencer software? Who are not us? To be asking the question of their software development teams? Hey, have we provided a feature that allows a customer to declare, you know, these are my diversity mandates?
I think it’s absolutely critical. Because we can’t assume any more of it. Okay, I popped in a hashtag. And I’m going to get back the influencers who are, you know, the best and the brightest and the most representative of what I’m looking for? again, it goes back to what’s the goal? What’s the plan? What are you trying to accomplish by hiring these influencers for your brand? Now, if your if your brand is literally the United colors of Benetton, then obviously you want it to be as diverse as possible, because that brand, that’s, you know, the pillar that they stand on? You know,
I think that a lot of other brands with through their advertising are trying to show more diversity, whether it’s through, you know, different shapes and sizes of people through you know, different genders through different backgrounds, those types of things. Again, it’s going to mean different things to different people in terms of what that diversity looks like. So even if you can’t do something straight out of the box, as as a vendor of identifying influencers, then you should at least offer the opportunity to have the conversation with the client to say, What are you after? And maybe we can sort of do custom projects for you so that that way, you know, because if I’m buying software out of the box, and my only option is, do you want, you know, 50%, male, 50% female, and then give me a choice of some out of the box ethnicities, that’s not really going to cut it?
How do we? Or how should we think about the double edged sword of that? Were? Suppose say, I’ll use fictitious example from from the Sherlock Holmes stories. You’re the head of the red headed league. And, and you are biased against everyone who is not a redhead? Does that feature off of the ability to discriminate? And why? By default? It does. How? How sensitive should we be as creators of systems to providing double edged swords?
Well, you know, I think it’s something and I might not quote you exactly. But it’s something that you’ve talked about where, you know, there’s going to be two jobs in the future. One is you will be managed by the machines. And the other is that you will manage the machines. And I think in this situation, we’re talking about managing the machines and more specifically, it’s, you know, you can’t just take the output from the algorithm as it is and just run with it, you need to include some of that human judgment. From you know, maybe it’s a steering committee, maybe you build your own sort of diversity group within your organization, to make sure that you’re representing, you know,
different segments of your market. And then you take a look at what the machine gives us an output, and you make those judgments say, Okay, this is what we were looking for, or you know, what, this is leaning a little bit too much towards redheads and not brunettes, and blondes, you know, so you need to do some of that checking after the fact. So there’s, I guess, if you want us to sort of say it very simply, there’s three stages, one is sort of planning and understanding what it is you’re trying to do. So you start to outline that criteria of diversity. Two is you actually run the software against that criteria, and three is you do your quality control to make sure that’s what you actually got, and you didn’t subconsciously program some sort of a bias in there. So it’s, you can’t just push a button, it’s way more complicated than that. But the output that you get will be so much more meaningful.
The principle of why, at least at the federal level, and then 47 states, non discrimination laws do not apply to to contractors is that, according to the law, an independent contractor is has full discretion about who they do business with, they can walk away at any time. And unlike employment laws, they everything is hundred percent that will regardless of the state you live in, so if you are working with a brand and you find out the brand is a member of the, you know, anti paleo League, or whatever,
try to cope with
you, as a staunch paleo advocate can can just say, I’m not going to work with you. But with the prevalence of all these folks who are now in the influencer game, who are not to use your word seasoned, experienced business owners, they’re just, you know, some kid with a, a smartphone and, and, and a mural.
How, how much of the responsibility is on the hiring business, to be educating them but biases the thing and that they you need to be aware of it and that the businesses is being aware of it as well? Or is it truly the business? The contractors responsibility to say, Yeah, I know the kinds of businesses I do and don’t want to work with?
Well, so I have a couple of thoughts on that. And let me see if I can get them out eloquently at this hour of the morning.
So I guess there’s where we’re talking about contractors. And I, I’ll use my favorite example of a Venn diagram. So you have contractors who work internally, in the business, you have contractors who work externally for the business, such as influencers. And then you have that weird spot in the middle where they are seen
as brand ambassadors, which is what an influencer is maybe a Venn diagrams, a bad example, I couldn’t make it work. I thought I could, but I’ll give up on that. But basically, you know, diversity absolutely applies to hiring contractors. However, I think where there is sort of like a little bit of a difference is you have those internal contractors who maybe you’re hiring for, you know, to help with some projects. Now, just because the public doesn’t see them doesn’t mean that diversity isn’t important. I would say, unfortunately, there’s more importance on diversity when the public does see them when you’re hiring a brand ambassadors. So if you take the contractor, piece out of it, and just sort of look at who’s representing your brand, then it’s a little bit more clear cut in terms of what that needs to look like, in terms of diversity. There was an article recently that came out about Beyonce of all people. And Beyonce was in the process of working with, I believe it was Reebok and she stepped into a meeting with the, with the team who had put together all of the different assets and samples for the campaign that that they were going to be joint launching. And she looked around the room and said, none of you here are representative of me, or, you know, the people who are my loyal fans, like, you’re just you don’t have the right background, you don’t have the right skin color, you don’t have the right gender, whatever the conversation was. And of course, Reebok is tonight that this ever happened, although she went ahead and move forward with Adidas, who was able to sort of meet the needs. And so internally and externally that diversity is important that representation is important.
Now, back to your original question about those contractors, you know, it’s, it’s tough, it’s a difficult conversation. And it’s hard for me to even articulate to say, I feel like there’s a little bit more importance on
those people who are publicly representing your brand in terms of making sure that you absolutely have that diversity. Now, you’re right, it is the responsibility of the contractor as well as the business but the business needs to put their best foot forward to make sure that they are trying to hire a diverse team. Okay.
The reality example is a really interesting one. Because in that, in that example, specifically, the balance of power is on beyond say aside, she gets to say, Well, if you want access to my empire, it truly is practically a nation unto itself, then you need to be you need to follow my rules, right? We’re I think, we’re heading with the question about software and influences is when the balance of power is is more firmly have a company sound like, hey, if you want us to pay, if you want to pay you, you know, whatever, to take Instagram photos that are thing.
The influencer, particularly the the so called micro and nano categories, those are going to be those people will have less leverage in those transactions. And it looks at that point, at least to me, and I’m not an HR professional. But it looks to me more like a traditional hiring environment where you could say like, yeah, I only want to hire Caucasian heterosexual females have upper middle income backgrounds between the ages of 22 and 26. Right. And that creates a very homogenous pool.
So the question there is,
does that business really have that responsibility to say, Yes, we we do need to diversify the public? Or is it really, hey, like the brands that have chosen to publicly, intentionally offend a segment of their audience say, you know, what, we only want this to be our brand and and and and because the cut, the laws don’t apply and 47 states, we’re just going to do what we do. And that’s that, or
is there more? Is there less risk for a brand to be compliant to the most stringent standard of we know that independent contractor law will be changing over time, we know that discrimination laws will eventually adapt to discrimination applying to contract is let’s get ahead of it. And and work to the most stringent standard?
Well, yes, there’s two things there. One is, if you’re a brand, who consciously makes the decision to hire only a certain segment of the population, that’s your choice, you just need to stand behind the choice that you’re making. You know, you need to be able to justify why when people call you out, or ask the question, you know, why do you only have that, you know, Caucasian, 26 to 28 year old female, upper middle class, so and so forth? Like, why, you know, why? Why are you not more representative? If you have an answer, and you can stand behind your decision. Now, I’m not saying that I would necessarily agree with it. But I don’t run every brand in the world yet. You know,
but you know, stand behind your decision, make sure that you’re you have a rational reason for doing what you’re doing. I think the other side of that is, you know, not every influencer group, not every segment is going to have that diversity that you’re after. So it’s, it is still a double edged sword. So let’s say for example, in the fashion industry, you’re looking for a very specific, you know,
population that is under represented, that population may just not exist as a fashion influencer. So maybe it’s an opportunity to start to create new ones, but maybe what you’re looking for in an effort to be diverse just doesn’t exist. Maybe you’re looking for, you know,
Asian males aged 40 to 50, who don’t like going outdoors in the fashion industry. You know, I would venture a guess I could be wrong, but perhaps they don’t exist in the fashion industry. And so, you know, you’re sort of spinning your wheels trying to create this diversity that just isn’t available to you.
So last question is we wrap up and this is the the trickiest one of all as well, I will add as
good as as
what kind of trade off should accompany be willing to make in, in search of diversity versus performance. And you alluded to this earlier, when you set the Oh, there, there are some industries where you’ll have a very few influencers outside of the majority segment. So if you’re looking, for example, in machine learning, there are statistically fewer women, they are now the women who are who are there are phenomenal human beings, right they are, they are just as good or better than their male counterparts. But if you have to pull together a list of 500, or 5000, or you know, these large scale influencer lists for these major programs, you the people who you get past that top 25% are going to perform worse, like if you if you commit to hiring, for example, middle aged men for a fashion industry, right, and you want to be representative of that some of those influences statistically are just less likely to perform well then someone who is a 32 year old African American female who is just got her finger on the pulse of culture and and her audience loves her.
What kind of trade off do you make? How do you how do you how you justify to your board, to your shareholders and things like yeah, we are intentionally supporting diversity, and we’re going to accept this performance hit.
I think that’s exactly it. You go in with your eyes open, and you go in having done all of your research, and you make the conscious decision, we want to bolster these folks who, you know, statistically won’t perform as well, because they just don’t have the fans, the followers, the network, the reach, however, they are the right fit for our brand. So we will do what we can to propel them forward. It’s a conscious decision. It’s something that
you’re absolutely right, you would have to justify to your executive level your C suite, they won’t perform as well. However, they are a better cultural fit for the message that we’re trying to push forward versus, you know, always hiring the same, you know, 10 influencers that pimp out every other brand, just because they have that network.
Yeah, you know, so in b2b a ton, there’s like 10, folks that go to every tech show, and right, never anyone different.
And that’s okay, because they’ve obviously made a business out of it. And these companies are willing to still continue to hire them, but they’re making a conscious decision to do that every single time. I mean, you could even make the same argument for, you know, new speakers trying to break through in that market. You know, it’s tough when the same people are hired over and over again, you have your familiars, you know, what to expect with them, you know, what you’re going to get as a performance out of that same roster of about 10 people. So someone new who’s trying come up, who doesn’t have the experience, the network, the connections, it is tricky. So businesses have to make that conscious decision to invest time in those lesser known folks in order to start to, you know, break the mold.
Yeah. So to wrap up, I would say I think we’ve arrived at diversity is obviously a conscious choice. However, we do see that as more of the economy moves to the gig economy, whether you’re a Lyft driver or whether you’re a rockstar, Instagram influencer, non discrimination laws will eventually catch up to employee level laws. If you want to be ahead of the curve, it’s never a bad idea, to look for bias and to make conscious choices about the bias, and to ask your vendors, how they are accommodating bias within their systems and looking for it. So Katie, any other last words? You know,
I think the best thing that you can do is just keep having the conversation within your company. Just trying to make sure that you are putting your best foot forward when it comes to diversity.
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