Influencers Are Here To Stay—Now It's Time To Modernize Labor Laws

A TikTok ban could devastate thousands of independent workers, but the real challenge lies in modernizing labor laws to support the new economy.

The Supreme Court agreed to hear oral arguments on the government's TikTok ban next month, just days before it's supposed to take effect. If the Supreme Court upholds the ban, many of the 100,000 independent workers who rely on TikTok as either a primary job or a side gig could face devastating economic consequences.

The term "influencer" may elicit eye rolls, but whether these content creators are sharing do-it-yourself tips or mental health advice or merely pictures of a recent lunch outing, the entrepreneurship and income involved are real. U.S. labor laws have not kept up with the changing environment of work, and as a result, nontraditional workers are especially vulnerable to labor market shocks. It's time for reforms that incorporate the growing self-employed work force.

While influencing is a relatively new form of work, freelancing and self-employment have been features of the American labor force for decades. Estimates show around 60 million Americans engaged in traditional freelance jobs or gig work in 2022. Twenty-three percent of these gig workers made influencer-style content on a social media platform.

Independent workers face different risks than traditional employees. Workers whose primary source of income is independent contracting are frequently left out of employment-based benefits and protections. Laws that tie benefits like health insurance or retirement savings accounts to W-2 employment go back half a century, long before anyone could make millions off of 30-second dancing videos.

When these laws were created, restricting benefits in this way wasn't a big issue because a larger majority of workers were traditional employees. But now our laws are failing a significant portion of the modern work force. State and federal policymakers can remove old-age barriers that restrict the flow of benefits to the independent work force. 

In 2023, Utah passed a law that removed the presence of benefits in determining whether someone was an independent worker or a W-2 employee, which effectively allowed organizations to provide benefits to independent workers. As a result, Target's delivery service Shipt launched a pilot benefits program in Utah earlier this year in partnership with the benefits company Stride. Just this month, Lyft announced it will run a pilot portable benefits program in the state, contributing 7 percent of a driver's quarterly earnings into a flexible benefit fund. It's then up to the workers to decide how they wish to use it.

This move may have created momentum for other states to do the same. With the support of Pennsylvania's governor, DoorDash introduced a pilot portable benefits program in April that will allow delivery workers to receive deposits equal to 4 percent of their earnings, also managed by Stride.

There is plenty more that policymakers can do, from equalizing tax treatment between self-employed workers and traditional employees to changing the infrastructure of health insurance laws to clear the path for better access for the self-employed.

Critics of portable benefits argue that workers would be better off in traditional employment arrangements. However, according to a 2023 Bureau of Labor Statistics survey, the vast majority of independent workers don't want to be W-2 employees. That's partly because independent work offers a type of autonomy that most can't get in a traditional 9-to-5 job.

It's not "pro-worker" to force people into arrangements that may not suit their personal or professional needs. When states have pursued such reclassification—as California did with 2019's Assembly Bill 5—it resulted in fewer independent work opportunities and no increase in payrolled jobs, as was promised. The real answer is to adapt labor laws to better encompass the new environment of work.

Even if TikTok is banned, social media influencing will remain a force in the U.S. economy. For many young people, including the 57 percent of Gen Z who say they want to be influencers, it's a dream job. When asked what they want to be when they grow up, the most popular occupation among children between 8 and 12 is a YouTuber. Scoff if you like, but young professionals are successfully opting out of traditional work arrangements in favor of flexible work. Already, 53 percent of Gen Z professionals are working freelance jobs full time.

While a TikTok ban would hurt many workers, policymakers can empower independent workers in the new economy. A system of flexible benefits for an already-flexible work force is long overdue.