TikTok is unquestionably a modern phenomenon that features dancing, pranks, challenges, and unites the world with cat and dog videos. In the employment arena, it has also introduced the world to the ideas of “Quiet Quitting,” “Rage Applying,” and “Lazy Girl Jobs.” The latest employment law trend on TikTok is to “Get Laid Off with Me.” For those of you who have not yet heard of this, it is essentially employees filming themselves getting fired or laid off.
So, how does this work? The employee has a scheduled meeting with their manager and/or human resources (HR), where the employee either anticipates or quickly learns that the purpose of the meeting is to terminate their employment. The employee clicks the “record” button on their camera (if virtual) or phone and records the entire exchange. If the employee’s inclination is to record this event, one can presume they have some intent to use it—whether for legal or entertainment purposes (where TikTok comes into play). It is also an opportunity for employees to document and expose company conduct they find problematic or to make themselves the star of a “downward spiral” show.
From a litigation perspective, a recent survey of corporate counsel found that three in ten expect to see more wrongful termination claims as a result of this trend. These TikToks are certain to become key evidence in employees’ charges of discrimination with the Equal Employment Opportunity Commission and in subsequent mediation, arbitration, or litigation. Depending on the stated bases for the termination or layoff and the tone of the termination communications, a “Get Laid Off with Me” TikTok could provide needed support for claims of discrimination, harassment, or retaliation. They could also potentially embarrass the company and increase overall legal risk.
What Employers Should Consider
Employers have a few things to consider when faced with a “Get Laid Off with Me” situation. Many companies have policies that prohibit the recording of unauthorized videos at work. However, this is not an effective deterrent for an employee who is already being shown the door. Candidly, if employees are already being terminated or laid off, violating a workplace policy prohibiting recording is the least of their concerns. So, workplace policy should be put on the back burner in a “Get Laid Off with Me” situation.
However, there are state laws that dictate whether an individual can privately record communications and disclose them to the public. These are called “one-party consent” or “all-party consent” laws and are exactly as they sound—some states only require one party to consent to the recording (i.e., the employee) for it to be legally permissible for the employee to publish to the public. Other states require that all parties to the conversation consent to the recording. There are also federal laws that govern the recording of private conversations, but those rarely come into play in these situations.
Note that the applicable law is typically the law of the state where the person making the recording is located. So, if the creator is recording in Georgia (a one-party consent state) and records a termination virtually with an employer based in California (an all-party consent state), arguably it would be legal for that employee to make and post the video without the employer’s consent. There are exceptions to this rule, depending on the circumstances, which can make these recording challenges tricky for employers seeking to prohibit the use of a “Get Laid Off with Me” video on the basis of lack of consent.
Companies seeking to be heavy-handed may choose to take legal action against the poster for illegal recording (in all-party consent states), invasion of privacy, or defamation claims. The remedy for companies going this route will likely be limited to injunctive relief, requiring the poster to delete the TikTok unless the company can show actual harm as a result of the posting.
However, most likely, many companies will either do nothing or take efforts to keep these matters confidential and as private as possible. If the goal is to remove the post, the company can attempt to work with TikTok directly through its complaint process. TikTok has community guidelines and will review and remove any content reported that violates those standards. Depending on the substance of the video and its messaging, this may be the route to resolution if TikTok agrees that the post is inappropriate.
Another option, if the poster is amenable (or if it is a requirement in the company’s employment dispute resolution process), is for companies to utilize mediation or arbitration to try to come to a reasonable, confidential result with the poster. Alternative dispute resolution can be an excellent way to manage a dispute in a confidential and efficient manner.
If a post has already “gone viral,” all these considerations and efforts may seem ineffective and futile. However, companies should consider the example it may set for other employees who are thinking about becoming TikTok-famous at the company’s expense. Following through on enforcement of the law and protecting its legal rights may be the only deterrent for the next person hoping to become a TikTok employment trend. Either way, employers need to be prepared for the increased likelihood that their employees will take to social media when faced with termination and layoff situations.
