DOJ Tells TikTok Employee Ban Isn't Targeting His Pay

Trump v. TikTok
Trump Photo: Anna Moneymaker/Getty Images

On the heels of an announcement that Oracle and TikTok have submitted partnership plans to U.S. Treasury Secretary Steven Mnuchin, the Trump administration has assured an employee of the popular video-sharing app that the potential ban on transactions with Beijing-based parent company ByteDance won't interfere with his ability to be paid.

Technical program manager Patrick Ryan launched his legal challenge on Aug. 24, the same day TikTok sued, and then earlier this month filed a motion for an injunction to stop the Department of Commerce from enforcing President Donald Trump's Aug. 6 executive order. Ryan argues that because the order prohibits any "transaction" between those subject to U.S. jurisdiction and ByteDance it could keep TikTok employees from being paid.

After Ryan converted his request to one for a temporary restraining order at the suggestion of U.S. District Judge Vince Chhabria, the Department of Justice on Thursday filed an opposition arguing the employee couldn't prove he'd be irreparably harmed if the ban were implemented because losing salary isn't enough to meet the standard and that he has no business questioning the need for the order.

It seems the administration has changed its tune. In a letter to Ryan's attorneys that was filed Monday as an exhibit, DOJ lawyer Serena Orloff says the Department of Commerce "does not intend to implement or enforce Executive Order 13942 in a manner which would prohibit the payment of wages and/or salaries to Plaintiff or any other employee or contractor of TikTok."

It also assured him it doesn't intend to prohibit employees from receiving benefits packages or impute civil or criminal liability to TikTok employees "for performing otherwise lawful actions that are part of their regular job duties and responsibilities," but it can't provide any assurances that ByteDance won't "elect to restructure or change employee payments, benefits packages, or duties, as a result of Executive Order 13942."

Ryan's attorney John D. Lovi responded by saying his client appreciates the "serious effort to avoid the need to litigate," but that those assurances didn't go quite far enough. Ryan is still worried about reputational injury and H-1B visas that are held up because of confusion surrounding the order.

Lovi asked the DOJ to ensure that “the Department of Commerce and President of the United States wish to make clear that the 'national security' concerns stated about the Chinese government and the PRC in Executive Order 13942 do not in any way extend to or are meant to reflect upon the integrity, patriotism, or reputation of any individual U.S. employee of TikTok, and any implication of such was unintentional and regretted' and that “the Department of Commerce will take steps to inquire into and facilitate the processing of any outstanding H-1B visa applications of potential TikTok employees.”

The DOJ rejected that request, Lovi tells The Hollywood Reporter. So Ryan will continue pursing litigation to address those concerns.

Chhabria on Monday vacated the hearing, and on Tuesday issued an order denying the TRO despite the DOJ's filing.

The text is "somewhat difficult to understand," Chhabria notes, adding that he's unsure he would even have jurisdiction to issue the TRO. Even if he did, in order for it to affect Ryan's ability to get paid or be criminally prosecuted for taking money from ByteDance, Chhabria says the Secretary of Commerce would have to include employee wages on the list of banned transactions and the government would need to prosecute TikTok employees for receiving paychecks.

"That is an unlikely chain of events," writes Chhabria, noting the DOJ's filing. "It is thus doubtful — at least at this time — that Ryan’s alleged fear that he faces prosecution is reasonable."

Separately, Chhabria is denying the order because Ryan hasn't demonstrated irreparable harm without a TRO.

"And to the extent Ryan seeks to protect a future paycheck (or to protect against prosecution for receiving money that TikTok owes him for work performed), that protection could be readily provided at a later date, if and when the possibility of losing it becomes more concrete," writes Chhabria in the order, which is posted in full below. "Of course, to obtain a temporary restraining order in the future Ryan would also need to satisfy the remaining three prerequisites for obtaining a temporary restraining order, including that he demonstrate a likelihood of success on the merits (an issue on which the Court expresses no view at this time). ... And he would need to demonstrate that no other reasonable means to protect his financial interest are available (which they may well be)."

Lovi on Tuesday sent THR a statement in response to the decision. "It is not clear from the Court’s decision that the Court would have granted us a TRO if the Government had not acceded to our demands," he writes via email. "However, what is clear, is that the Government was concerned enough about the prospect of losing the TRO that it made its concessions known to the Court on the eve of the hearing to avoid any possibility of losing. What is important is that we were able to achieve the result we wanted — that the thousands of TikTok employees around the world will not lose their salaries, wages, or benefits, or be at risk or civil and criminal penalties because of the President’s Executive Order — not the manner that those results were achieved."

It remains to be seen how the recently announced Oracle partnership with TikTok will affect the looming ban or the company's lawsuit against the Trump administration.