Preparing for a TikTok Ban: What Employers Should Do to Ensure Access to Crucial Information Before It Disappears

In recent years, TikTok has become a widely used platform for communication and content sharing, boasting nearly 2 billion users globally and 170 million active users in the U.S. alone. And while other social media platforms may enjoy wider use by U.S. adults, TikTok stands out for its rapid growth among working-age people. Indeed, according to Pew, between 2021 and 2023 the share of U.S. adults saying they use the app rose dramatically—encompassing a full 33%.

However, concerns over data privacy, national security, and certain content have led to discussions about banning TikTok in various countries, with the U.S. Supreme Court greenlighting a ban in the U.S. last month. For employers, this raises significant concerns about accessing potentially discoverable information in legal proceedings, especially if TikTok users suddenly lose access to their data. This post outlines the history of the TikTok ban, the importance of discoverable content on the platform, and practical steps employers can take to ensure they have access to relevant information.

History of the TikTok Ban

The debate over banning TikTok began in earnest in 2020 when several governments, including the United States, expressed concerns about the app’s data collection practices and its potential ties to the Chinese government. In August 2020, President Trump issued a sweeping (and vague) executive action, but legal challenges forestalled its implementation. Following renewed efforts by Congress during the Biden administration and the Supreme Court’s recent imprimatur on those efforts, it appeared that a ban would go into effect, as scheduled, on January 19th. While President Trump has delayed the ban for 75 days, employers must prepare for the possibility that access to TikTok could be restricted or entirely cut off on April 4th, 2025.

Use of TikTok for Communication

TikTok is not just a platform for sharing videos and images; it is also a vibrant communication tool. Users interact through posting videos and comments, direct messaging, re-posting, favoriting, liking, and “stitching” other content, all while addressing a wide range of topics, including especially personal experiences and opinions. This multifaceted use of TikTok means that a vast amount of information is generated daily, much of which could be relevant in a legal context.

Discoverable Content on TikTok

The content shared on TikTok can be highly relevant and discoverable in legal proceedings. Examples of potentially discoverable information include:

Working Conditions

Employees may post videos or comments (or engage in direct messaging) discussing their working conditions, sharing both positive and negative experiences. This kind of content can provide insight into the strength of certain claims or even prove dispositive.  

Financial Information, Side Work, and Earnings

Users might share details about their financial situation, including salary, bonuses, and financial hardships or windfalls—all potentially relevant to economic damages claims.

Relatedly, users might disclose things like side work or post-termination earnings—in fact, many TikTok users earn money from their use of the app itself. This includes income from sponsorships, product placements, and other monetization methods. This kind of financial information can be key to evaluating a plaintiff’s efforts to mitigate her damages or to assessing whether she engaged in other employment or activities in violation of the duty of loyalty.

Emotional Distress

TikTok is often used as a platform for discussing personal issues, including emotional well-being and health concerns—content that can be crucial in employment cases, virtually all of which include claims for emotional distress and a seemingly greater number of which are beginning to involve allegations of “physical sickness” as a means to gain more favorable tax treatment in the event of recovery.

Evidence of Time Spent Not Working

User logs and metadata from TikTok can show that an employee was not working at a given time. For example, this information may show periods during which an employee was able to take meal and rest breaks without interruption, evidenced by their use of the app during those times. Such data would be highly relevant in wage and hour disputes or claims related to timekeeping, meal and rest breaks, or productivity monitoring.

Practical Tips for Employers

To ensure access to potentially discoverable information on TikTok in the event of a ban, employers should strongly consider the following practical steps:

Document Preservation Requests

While ordinarily employers are on the receiving end of preservation notices, to the extent it’s practical to do so, employers should consider sending their own document preservation notices when litigation is commenced or reasonably anticipated, with appropriate warnings concerning spoliation in the event of failure to preserve. This includes videos, messages, comments, and any other interactions on the platform that may be pertinent to ongoing or potential legal matters, including all metadata.

Written Discovery Requests

Incorporating specific requests for TikTok content in written discovery can help ensure that all relevant information is disclosed before access to the platform is restricted. This may include requesting screenshots, video downloads, message logs, and all associated metadata. Employers actively engaged in litigation should strongly consider issuing discovery for this content, as a potential ban could go into effect well before a motion to compel might be due, complicating access and potentially resulting in irreversible loss of that content.

For example, in California it typically takes at least 75 days after service of written discovery before a motion to compel is filed (30 days to respond + 45 days to move to compel). Thus, assuming an employer issues a request for TikTok content today, a motion to compel its production would likely be heard well after the ban’s current effective date on April 4th, risking the possibility that such evidence will never see the light of day—even with a court order for its production in hand.

Subpoena TikTok

While ordinarily the parties to a lawsuit are the proper targets for discovery, at least initially or when the parties have access to the information sought, employers should also consider issuing subpoenas to TikTok for relevant information. Third-party subpoenas can be cumbersome to enforce, but unlike users, TikTok itself is (or should be) sophisticated enough to preserve relevant data, even after a ban prevents users from gaining access to it.

Engage Digital Forensics Experts

Digital forensics experts can assist in the identification and preservation of TikTok content. These professionals can help recover deleted content, authenticate data, and ensure that the information is properly preserved for legal use.

Regular Monitoring and Updates

Employers should stay informed about the latest developments regarding the TikTok ban and other regulatory changes that may impact access to digital content. Regular monitoring and timely updates can help employers adjust their strategies, ensuring they capture useful and potentially dispositive evidence.

Looking Ahead

The potential ban of TikTok presents significant challenges for employers seeking access to discoverable information. By understanding the history of the ban, recognizing the importance of TikTok content, and implementing practical measures, employers can safeguard their access to crucial information and ensure compliance with legal obligations. Proactive steps today can prevent data loss and support successful legal outcomes in the future.

For guidance on navigating these issues, California businesses should consult experienced employment counsel.  Attorneys with Fox Rothschild’s Labor & Employment Department are closely tracking developments related to technology and its implications in workplace disputes.  For further assistance, please contact your Fox attorney or the author of this post.