TikTok’s use of “independent contractors” to review potentially problematic content will not protect the company from possible liability for the “psychological injury” that work is alleged to have caused. If anything, it may have created even more legal exposure for the social media giant.
While many people think of employment laws as intended to protect employees, sometimes the intent is also to protect employers. For example, workers’ compensation statutes are intended to protect employers from potentially catastrophic tort liability by dictating, and limiting, “the exclusive remedy against an employer for on-the-job injuries.” When a worker is properly classified and treated as an employee, this mandatory insurance dramatically reduces the potential liability for the company if an employee experiences an on-the-job injury. Similarly, a worker properly classified and treated as an independent contractor ordinarily won’t have a claim against the company because, at least in most states, “a company that hires a contractor is ordinarily not liable for the injuries of that contractor’s employees.”
However, Young v. Bytedance Inc. just provided a good reminder that a company can actually lose this protection if it’s not careful. Specifically, a company that insists on controlling workers to such a degree that the “independence” needed to be a true independent contractor is lost may find themselves in quite the pickle. The plaintiffs in Young get to move forward with their claim of negligence against TikTok, a claim with no damages cap in California. According to their Second Amended Complaint, TikTok “retained control over [their] work and its exercise of that control affirmatively contributed to the contract worker’s injuries.” Allegations of control include the mandatory use of TikTok’s proprietary software when performing the work and strict productivity standards, including speed and accuracy quotas, allegedly set by TikTok. These allegations, according to the federal court in California, are sufficient to let the case move forward. Only time will tell whether these workers can show that this "control" means TikTok should be on the hook for the mental harm they allegedly suffered doing their job -- reviewing the posts that have been flagged by TikTok as potentially inappropriate for public consumption.
Most companies don’t task workers with watching “hours of disturbing videos showing necrophilia, bestiality, violence against children and the like.” But companies across a variety of industries use “contractors” to perform services of one form or another for them. Young is a cautionary tale for all such companies. Even if a company avoids tort liability, it may find itself in the middle of a huge misclassification fight. With more and more agencies entering into information sharing agreements, this could easily turn into a fight that has to be fought on multiple fronts. And, if the company exercises the kind of control alleged in Young, it won’t be an easy fight to win.
No need to wait for the claim to come in – companies that use contract workers to perform any services should speak with an experienced employment attorney to make sure this classification gives the company the protection it thinks it has.
