Just weeks ago, it was hard to open any social media application without seeing a post or news article concerning popular content creators The Try Guys. The internet stars have been trending since mid-September after online rumors began circulating that one of the group’s founders was having an extramarital affair with a subordinate employee. While few instances of office indiscretions will be subject to the spotlight or backlash of the internet, the Try Guys scandal highlights important considerations for employers facing allegations of workplace misconduct by company leaders.
Background
The Try Guys skyrocketed to internet fame in 2014, when founders Eugene Lee Yang, Ned Fulmer, Keith Habersberger, and Zach Kornfeld started creating videos while working for a popular media news outlet. Their videos featured the foursome trying new things (hence the group’s name). After gaining popularity for their fun and lighthearted videos, the Try Guys left the media group in 2018 and launched their own company, 2nd Try, LLC, which reportedly staffed a team of approximately twenty employees as of 2021.
This past Labor Day weekend, fans reached out to Habersberger, Kornfield, and Yang with reports of having witnessed Fulmer and an employee of 2nd Try, LLC engaging in “public romantic behavior.” Fulmer is married and his wife has appeared in many Try Guys videos. In fact, Fulmer was known to fans as the “Wife Guy” and kept a family-focused public persona. Before fans’ reports of Fulmer’s indiscretions with a subordinate were public knowledge, Fulmer was notably absent from Try Guys content posted in mid-September. This generated a frenzy of speculation-filled chatter on social media platforms that culminated with a user sharing photographs of Fulmer kissing the employee in a since-deleted post.
On September 27, 2022, the Try Guys released a statement on their social media pages that Fulmer was “no longer working with the [group].” The following week, the three remaining members uploaded a video to the group’s social media accounts that provided viewers with a timeline of the events that transpired. The trio explained that after Fulmer admitted to the affair when presented with fan reports of his infidelities, the group removed Fulmer from work activities and retained “employment lawyers, corporate lawyers, HR, PR and more” to ensure that they took the proper steps. One of those steps was an investigation conducted by a human resources professional. Following what Kornfield described as a “thorough review of the facts,” the Try Guys made the decision to remove Fulmer as an employee and manager of 2nd Try, LLC.
Key Takeaways for Employers
Though not every allegation of workplace misconduct will make headlines, employers can benefit from having policies and practices in place to ensure they effectively respond to any such claims. Among the many lessons employers can glean from the recent Try Guys scandal, are the following considerations regarding policies, training, education, and communication that employers may wish to explore when facing similar circumstances.
Optimizing Company Policies to Mitigate Risk and Foster Consistency
Much of the online conversation surrounding Fulmer’s extramarital affair has focused on the power imbalance between the former Try Guy, a cofounder of the group, and the subordinate employee with whom he was romantically involved. Since the #MeToo movement, companies have become hyperaware of the legal and practical ramifications of an intimate relationship between a manager, supervisor, or leader and a subordinate. An employer may have legal exposure for the conduct of the employees involved in these relationships, including but not limited to claims of discrimination or sexual harassment. Manager-subordinate relationships can also negatively influence employee morale. To address these risks, some employers implement anti-fraternization policies, prohibiting romantic or intimate relationships between subordinate employees and their direct supervisors. As an alternative, many employers adopt consensual-relationship policies that require romantic relationships with subordinates be disclosed to human resources. If a company chooses to implement a policy regulating workplace romances, the company may also want to consider including it in training materials for employees, supervisors, and managers.
Workplace policies are effective when enforced consistently among all employees. Employers may open themselves up to liability when they selectively apply policies regulating workplace conduct. While the Try Guys did not state the specific policy Fulmer had violated, they made it clear in their video and a subsequent podcast episode that the group had formally cut ties with Fulmer after an internal investigation found that he had engaged in conduct “unbecoming” of the team.
Addressing Liability Risks in Comprehensive Employee Training
Fulmer was a manager, or co-owner of 2nd Try, LLC, and thus was an important member of the company’s leadership team. Supervisors, managers, and executives may be considered agents of a company—a designation that may subject employers to vicarious liability for conduct of supervisory employees that violates federal employment laws. The Supreme Court of the United States has determined that an employee is considered a “supervisor” for vicarious liability purposes under Title VII of the Civil Rights Act of 1964 when “he or she is empowered by the employer to take tangible employment actions against the victim.” Tangible employment actions may include hiring, firing, offering a pay raise, or a decision that may cause a significant change in benefits. Thus, if a subordinate claims that a romantic relationship with a supervisor was the result of unwelcome advances, an employer may be liable for sexual harassment under Title VII, even where the employee never reported the harassment.
Most employers have sexual harassment, discrimination, and retaliation policies outlining their expectations regarding behavior in the workplace. Employers may want to conduct regular training on those policies, in addition to any anti-fraternization policies, for employees and supervisors. In fact, some states, such as California, Connecticut, Illinois, and New York, as well as the District of Columbia, require certain private employers to conduct regular sexual harassment prevention training. Companies that can produce evidence of yearly training and well-disseminated policies may be in a stronger position to establish certain affirmative defenses that can insulate employers from liability against claims that a supervisory employee sexually harassed a subordinate. As such, employers may want to ensure that their supervisors and managers are properly trained on any workplace policies.
Maintaining Multiple Channels for Reporting Concerns
Companies may want to consider striving to foster environments where employees feel comfortable enough to report inappropriate workplace behavior, so that situations may be remedied promptly and adequately. One way that employers might do so is by including information about available reporting channels in workplace policies. Ideally, an employer will maintain more than one reporting channel, so an employee has options if the alleged misconduct involves a supervisor in the immediate chain of command. These channels could include identifying key human resource employees or contacts, reporting workplace concerns to shift managers, or providing access to an anonymous hotline. In addition to identifying these channels in written polices, employers might consider posting information about these channels in common areas throughout their workplaces.
Investigating Allegations of Workplace Misconduct Promptly
In both the video and the podcast, the Try Guys explained that the investigation into Fulmer’s workplace relationship was prompted by multiple reports the trio received from fans over Labor Day weekend. Though the Try Guys did not say whether any other reports of Fulmer’s infidelities came through an official reporting channel, the timeline of events makes clear that the investigation into his alleged misconduct commenced promptly. Similarly, employers may want to take prompt action to investigate allegations of workplace misconduct, regardless of whether a report comes through an “official” channel.
Assessing the Impact of Employment Practices on Company Reputation and Brand
Employers may also want to take into account the impact that a leader’s actions may have on a company’s reputation and business opportunities. Kornfeld and Habersberger noted in a podcast episode released on October 6, 2022, that the Try Guys organization operates under certain fundamental values and Fulmer’s actions were contrary to those values. They explained that the remaining Try Guys did not want their employees, or the public, to think that they would be willing to deviate from those values to protect Fulmer. Likewise, when considering taking adverse employment action against an employee or leader for misconduct, an employer may want to consider the organization’s core values and whether any subsequent action aligns with those principles.
Leader misconduct could damage a company’s reputation and brand integrity, leading to financial fallout. Content creators such as the Try Guys often partner with or receive sponsorship from corporate brands. A hit to their reputation could lead to those companies withdrawing from such deals. Employers that provide consumer-facing products or services may want to consider how public opinion regarding employment practices may affect their business models.
Ogletree Deakins’ Workplace Investigations and Organizational Assessments Practice Group will continue to monitor developments within this practice area and will post updates to the firm’s Workplace Investigations and Organizational Assessments blog. Important information for employers is also available via the firm’s webinar and podcast programs.
