Virtual Terminations in the Age of Social Media

By:  Abigail Leinsdorf Garber 

A recent trend of “get ready with me” videos on social media platforms like TikTok has ventured into the employment arena. Some members of the workforce (often of a younger generation) now regularly use social media to share moments in their lives others would prefer to keep private, including rituals as mundane as getting ready to go on a date. The rapid increase in popularity of such videos, resulting in over 150 billion views on TikTok by November 2023, prompted users to experiment with videos focused on more private and emotionally challenging topics. “Get ready to get fired with me” videos are now commonplace and often include a recording of meetings in which employees learn of their terminations. The videos capture the raw emotions of the employee being filmed as well as the employers’ communication, including any missteps made by the employers’ representatives delivering the news.

Can employers forbid employees from filming such interactions? Although eleven states require all parties to a conversation to give their consent for a conversation to be legally recorded, the vast majority have one-party consent laws on the books. And in the age of remote work where employers and employees may be based in different states with different laws, determining which jurisdiction’s recording laws apply is a complex task that evolves as each party to a conversation moves to a new location. Even if employers could easily determine which recording laws govern their termination meetings, they must also keep the National Labor Relations Act (“NLRA”) in mind. An employee surreptitiously recording a termination may be engaging in protected concerted activity, as the National Labor Relations Board recently ruled in a February 2023 decision involving Starbucks.

In light of the reality that employers may not be able to practically or legally prevent sensitive termination meetings from being recorded and broadcasted, the following tips may help mitigate the related risks:

  • A genuine expression of empathy for the human being on the other side of the screen is appropriate.
  • Offering transparency surrounding the reason for the termination communicates respect for the employee being let go.
  • Act as if the world is watching, including your clients, business partners, or donors.