TikTok Layoff Videos Pose Quandary for Bosses on How to Respond

Brittany Pietsch inspired a wave of copycats after she posted on TikTok a recording of her tense conversation with two Cloudflare representatives informing her that she was being let go.

And more employees are also recording employers relating to union activities as well as in situations where they face disciplinary action, said Roger King, senior labor and employment counsel for the HR Policy Association.

Those videos are likely to draw expressions of support (Pietsch’s TikTok now has over 124,000 likes and her related LinkedIn post drew over 10,000 reactions) and possibly referrals to new opportunities, but they also come with legal and reputational risks—not just for the former employees, but also for the companies conducting the layoffs.

Employers should be aware of these types of social media trends, which “take on a life of their own,” said Rick Gordon, chair of the labor and employment practice at Akerman LLP. “Companies should expect that every time they’re terminating someone, that interaction could end up on TikTok or YouTube. They need to be conducting themselves as if it’s going to go viral, because it might.”

Risks to Ex-Employees

For former employees, one of the biggest legal concerns is that these kinds of videos could violate the privacy of the individuals laying them off.

“There’s this tendency today to share everything about everyone without consideration of the privacy rights or implications for other people,” said Linn Freedman, an attorney with Robinson & Cole LLP. “I don’t think in this scenario, the individuals who are posting the content really understand what the risk is, and the risk that they’re putting others at.”

Depending on what state an employee and their employer are in, the people in the conversation are subject to either one-party or two-party consent when it comes to recording. In two-party consent states, both parties—in this case the employer and the employee—must agree for the conversation to be recorded, whereas in one-party states, it is enough for the employee recording the conversation to consent.

Even if the employee is in a one-party consent jurisdiction, such as Washington, D.C., if the employer is in a two-party consent state, such as Maryland, two-party consent laws apply.

“You kind of want to assume it could be a two-party state situation,” said Molly Arranz, a privacy attorney with Amundsen Davis LLC.

“You’re sort of inviting potential abuse of exposure or liability as an individual, as an employee doing that without consent, because there’s potentially even criminal implications for that sort of failure to get the consent and make the disclosure before you start to record and post something,” said Arranz.

Freedman said that in particular, there are privacy implications for the human resources employee or company representative informing the employee that is being laid off, because it is their voice in the video and there are laws around the protection of the likeness of someone’s voice and whether it is identifiable. Pietsch’s video, for example, broadcasts the voices of the company representatives informing her of her layoff, and both representatives’ first names are mentioned over the course of the video. (Pietsch didn’t respond to a request for comment.)

Chloe Shih, a 30-year-old who has been sharing stories about her tech career on social media for roughly four years, made it a point to use a voice-over in her TikTok when a Discord company representative told employees they were being laid off. She said in an email interview that she never records or publishes anyone’s voice or video without permission.

Additionally, attorneys warned that employees should consider whether posting the video may violate the terms of an employment contract.

Some employers include conditions in contracts or in their employee handbooks restricting employees from making disparaging remarks about the company, which they could face legal consequences for violating.

“Before they post anything, they may wish to make sure they’re not violating a code of conduct, employee manual or any type of separation agreement or termination agreement or settlement agreement,” said Freedman. “That’s the first thing.”

Employee Protections

But even if the videos do violate state laws or company agreements, this doesn’t mean that employers can pursue legal claims against former staffers without risk. “You can’t really rebrand yourself away from something that is as flagrant as that,” Arranz said. “It’s not only having a TikTok posting by one of your employees, but also then for pursuing that individual in a court of law. I think that’s not a good look.”

It also might open up companies to charges under the National Labor Relations Act, according to labor attorneys.

Gordon said the act of posting a video of your layoff might be considered protected under federal labor law.

Labor board precedent protects video recording, even in two-party consent states, when it’s done to protect other workers or capture unlawful activity.

“If you’re documenting something about the terms and conditions of your employment, or the end of that employment, and sharing it online then I think there’s a good argument for that to be considered protected concerted activity,” Gordon said.

A lawsuit, taking away a worker’s severance, or giving out bad references for posting such a video could be considered unlawful retaliation and might draw an unfair labor practice charge, said Matthew Korn, an employer-side partner at Fisher Phillips.

“An employer has to do some calculus to think things through and weigh the benefits versus potential costs of going after a former employee for something like this,” Korn said. “I think the best thing to do is minimize the risks of an employee posting something unflattering in the first place. Make sure you have these upsetting conversations in a humane way.”

Companies would be wise to include nondisparagement and confidentiality agreements in their employee handbooks, Gordon added, but they must be narrowly tailored. The NLRB tightened restrictions on those clauses last year, ruling that they must be narrowly tailored so they don’t infringe on workers’ rights to organize.

Employees may also be able to rely on support from the Equal Employment Opportunity Commission if they are recording their layoff or other interaction with their employer out of fear of discrimination.

The agency has taken the position that an employee should be able to record regardless of an employer’s policy if they are doing so to document discrimination or harassment.

However, courts have delivered differing opinions and the US Court of Appeals for the Seventh Circuit held in Argyropoulos v. City of Alton that “an employee’s complaint of harassment does not immunize her from being subsequently disciplined or terminated for inappropriate workplace behavior.”

Future Employment

Aaron Holt, a labor and employment attorney at Cozen O’Connor P.C., said that before individuals post their layoff videos to TikTok, they should ask themselves whether it might deter other employers from hiring them.

Holt said the consideration is particularly important in “a social media-centric world where we live more and more online, and there is a longer record of what we have done throughout the course of our lives readily available via simple internet search.”

Legally, Freedman said, “employers have every right to look at prospective employees’ online conduct.”

Whatever the risks, workers are unlikely to stop making layoff videos on TikTok as long as they keep drawing likes and comments. Those who have posted such videos have also said they’ve gotten help in their job search precisely because of their openness about their lives.

Part of Shih’s motivation behind posting her own layoff video was to increase transparency about the inner workings of a tech company, especially from the viewpoint of a person of color, she said.

“The tech/corporate world is full of invisible rules that people without access have to learn through trial by fire,” she said. “I actually started my content journey sharing my career tactics—navigating things like negotiating your salary, standing out in interviews, breaking barriers as a POC woman in tech, and career stories that you only hear behind closed doors.”

Shih said that she has received over 50 direct messages, emails and texts from hiring managers, recruiters, and friends referring her to their companies since she was let go from Discord in January. “Those interviews came through direct inbound emails from hiring managers. It’s been a really packed couple of months,” she said.

While she took on a few interviews that came directly through emails from hiring managers, Shih said she decided to shift her focus to a few big projects relating to community and cultural impact that she’s been wanting to do for a while.

Since she lost her job, Shih’s content has included a series of videos on post-layoff life, including telling her parents, updating her professional information on job search sites, and going viral for recording her layoff.

“I’ve been a product manager and tech professional for my entire career,” said Shih. “I saw that there was a gap in accessible information on tactics, advice, and career stories and wanted to share my experiences to help others navigate their professional lives.”