In The Breakroom With Bill, Episode 8: Workplace Affairs, HR Integrity, and Organizational Trust

Announcer: Welcome to the Ogletree Deakins Podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.

Bill Grob: Hi, this is Bill Grob with Ogletree Deakins, and here’s another episode of In The Breakroom. So, with me is my colleague and law partner, Melissa Bailey, out of Washington D.C. Melissa and I are a little bit low-key obsessed about this next event that we’re going to be talking about. It’s the Coldplay concert, and exactly who do you bring to a Coldplay concert, and do you worry about whether you’re having a clandestine relationship and 65,000 witnesses and the unfortunate occurrence of a kiss cam. Melissa and I have been following this story. We’re a little bit low-key obsessed.
But Melissa, I want to introduce you and please say a few words about yourself. Tell us what you think about this whole explosion of information. It’s just been since Wednesday night, and it feels like it’s been an eternity.

Melissa Bailey: Well, thank you, Bill. Just to be clear, everyone listening, I am not an employment lawyer. I’m an OSHA lawyer who defends employers who’ve been cited by the government for workplace safety violations. Why I’m on this podcast? I’m just known throughout the firm, I think, as someone who likes stories like this, who likes celebrity gossip. I also recently attended my first Coldplay concert in El Paso, Texas. I have to tell you, it was an amazing show. I liked Coldplay before I saw them. Now I love them. So that’s kind of my involvement.
Let me just run through the timeline here. As Bill said, it’s only been since Wednesday. As a religious follower, and I don’t even know that I’d say low-key obsessed. I would say high-key obsessed is what I am.

Bill Grob: Absolutely.

Melissa Bailey: I’ve never seen anything go viral to this extent in all the years I’ve been following this. So, let’s just briefly review the timeline. So, July 16th, Coldplay plays in Boston. Astronomer CEO, Andy Byron, and Chief People Officer, Kristin Cabot, are at the concert. They are shown embracing on the kiss cam. When they realize they’re on camera, Byron ducks down and Cabot turns away from the camera. They’re both clearly freaked out. Chris Martin, who, by the way, based on my experience in El Paso, seems like the nicest person ever born. Says, “Whoa, look at these two. Either they’re having an affair or they’re just very shy.”
The footage was posted by a Coldplay fan called Grace Springer, who has been to multiple Coldplay concerts and just thought it was an interesting reaction. Grace says she feels bad, but she also commented, “Play stupid games, win stupid prizes,” which I just love as a quote. It’s very pithy, it reminds me of something my grandma might say. So, at this point, we know that Andy Byron, the CEO, is married.
Shortly after this happened, his wife took down all the family photos off of Facebook, and then she deleted her account. That’s something that I find often happens with these people: they delete their Facebooks, they delete their LinkedIns, they delete all signs of themselves online. Kristin Cabot, the Chief People Officer, is also married. Her husband’s family, the Cabots, are quite prominent in Boston, like think Mayflower, all that type of thing. Her husband runs a company called Privateer Rum, and it looks like they haven’t been married that long, like two or three years. There’s another woman in the footage who also appears to be kind of embarrassed, hides her face. People originally thought this was a woman named Alyssa Stoddard, who’s also in HR at Astronomer. Astronomer says that is not true. It is not her. It just looks like her.
On July 18th, a statement popped up that was allegedly from Andy Byron. Part of it said that he was very disappointed that such a private moment had gone viral and sort of seemed to blame whoever posted it. Astronomer came out immediately and said that statement is fake. On the same day, July 18th, Astronomer launched an internal investigation. They commented that, “Astronomer’s committed to the values and culture that have guided us since our founding. Our leaders expect to set the standard of both conduct and accountability.” The board initiated a formal investigation and put both Cabot and Andy Byron on leave. Since that time…well, and they also commented that no personal relationship was disclosed to the board. When I read that statement, I thought, okay, someone’s going to get forced out.
On July 19th, Byron resigns with no statement, no nothing. He resigns. The board accepts his resignation. No word on Cabot’s status. So, to say this launched a thousand memes is just a gross understatement. From my perspective, the story has everything. High-flying, successful participants. You’ve got that old-money Cabot connection. You’ve got the twists and turns, the fake statement. And then was Alyssa Stoddard from HR there? Did she know about it?
Okay, so let’s get to the real part of this. It’s been quite a ride, but I mean, what can we learn from this? Bill, you’re an employment lawyer, and I think it’s no secret that social media means that our private and public lives are more and more intermingled. We’re dealing with a kiss-cam issue here. But an executive posts something borderline inappropriate, a traffic stop gets out of hand, and the police body-cam footage is disclosed. Someone posts a mean restaurant review or leaves a bad tip, and that goes viral. What is your advice, Bill, to the audience on how employers should deal with these kinds of situations?

Bill Grob: Well, I’ll tell you Melissa, and thank you so much for the retrospective on the timeline and your thoughts on this. I mean, so many understatements in what you said. I can’t even begin to say how extraordinary this has been. I mean, in our world, our labor and employment law world, we don’t see things blow up like this. Even the Harvey Weinstein scandal and the #MeToo Movement did not seem to get as much traction as this has gotten in such a short period of time. You said something that launched a thousand memes. I’ve got to imagine there’s a million memes out there. I’ve seen ones from just about every walk of life. But I mean, it really is crazy. And to say that this is something that could ruin people’s lives, it’s really catastrophic, frankly, just one thing.
And so many people are saying, “Oh, why didn’t they just play it off?” I mean, who knows what happens in someone’s mind in the moment? But in reality, and in truth, Melissa, this is why we have jobs. People do very odd, sometimes stupid, things, and it leads to litigation. And that’s where we come in and try to appropriately advise companies. And in this case, I mean so many different things. And here’s the thing, right? You have a CEO, and even though it’s someone else in the C-suite, the Chief People Officer in Kristin Cabot, I mean, he is still superior in the hierarchy of the organization. In fact, he’s the top dog, right? I mean, he’s the one that controls everybody beneath him, at least all of those positions, including the Chief People Officer. And the question becomes, what are the legal implications of this?
I will tell you the very first, probably primary lawsuit that we talk about in all of our briefings, which is, I think, now over 40 years ago. But that was a case about someone in the hierarchy who had a relationship with someone who was in a subordinate position to him. And the defense in that case was, “Yeah, it was consensual, but I felt like I had to consent.” And that’s very similar to this kind of position. I mean, can Kristin Cabot come back and say, “Yeah, it was consensual, and we looked all cozy. But after all, he was the CEO. And if I didn’t consent to the relationship, I may have felt some pressure on the other side that could have implicated my job.”
And that’s why when we talk about the idea of investigation, most importantly to the company, investigation is probably the number one priority. And I said this, I was quoted in Fortune magazine on Friday morning and said, “Look, the most important thing the company can do is launch an investigation, launch it immediately.” You can’t really do it internally with internal people because you’ve got that pall of suspicion. There’s an inherent suspicion when a company does an internal investigation because people feel like those investigators are already either controlled by the CEO or the board. So, I said, “Use your lawyer or some other professional.”
Interestingly, over the weekend, someone sent me an email, an anonymous person, which obviously we see a lot of on the internet and said, “Why would you say anybody other than a lawyer?” Well, okay, to say only a lawyer is kind of self-serving. And I try not to be self-serving when I talk about these things. But there are professional investigators out there who do this kind of work. And if they do it under the direction, direct supervision of a lawyer, you can still maintain privilege. I mean, there’s a lot of ways to go about this. It looks like the company has done so.
But you brought up the idea of Alyssa Stoddard, and here’s the thing that a lot of people aren’t talking about. Alyssa Stoddard, the company adamantly says she wasn’t there. That’s not her in the picture. But what if it was? Does that matter? I can tell you that it does. It’s one thing if they have a secret relationship, and nobody knows what the truth is. But Andy Byron and Kristin Cabot, if this relationship exists, and it’s a secret, it’s a secret because it’s not a smart thing to do. And certainly, if you’re the CEO, not a smart thing to do when you’re working for an organization. You’ve got the department that is the conduit, really the buffer zone between management and the employees. There has to be trust in that department. HR must represent the interests of both sides of the coin, leadership and employees.
And so if you have Kristin Cabot, who’s the Chief People Officer, the number one person in that department, and you have someone else in the department that knows? Well, the question is how efficacious? How can that department do its job when other people in the department know that there’s this relationship going on, know that it could cause problems for the organization, and know that it could be a breach of fiduciary obligations for both of those individuals? And now it casts complete dispersion on everyone else in HR. So, no one in HR, because people are going to assume, well, gosh, if the vice president knew that this was happening, then everyone in HR must have known, and this was a secret.
I mean, just from that standpoint, Melissa, I mean, what do you think? I mean, even from an OSHA standpoint, I mean, certainly, if you have two people conspiring to potentially break a rule of the organization and certainly engage in conduct that is going to be adversely impactful to the organization. What do you think about that?

Melissa Bailey: Rather than answer that question, let me ask you a question. Would a company like Astronomer—and tech strikes me as kind of being a little different, I always think of tech as being a bit more modern—would you expect them to have a flat-out rule that says you cannot have a personal romantic relationship with anyone under you? In other words, if you’re the CEO, you cannot have a personal relationship with anybody within this company. Would that be typical?

Bill Grob: Not only typical but expected. And it doesn’t even have to be a rule, Melissa, it’s people in those positions. The CEO, unfortunately, is an island. He or she cannot have a relationship with a subordinate without the idea, right? Whether true or not, the idea of playing favorites among people in different departments. Automatically, if someone knows that he’s having a relationship with Kristin Cabot, for example, who’s the Chief People Officer, how comfortable do you think that that makes someone who’s going to go to HR to say, I was subject to discrimination or harassment, and I want you to do something about it.
Well, automatically, someone is going to think, oh my gosh, these folks, she’s in a relationship with the CEO. People are reluctant to bring these forward anyway because they’re worried about getting fired. That’s the number one concern about employees bringing this forward. Number two is the company’s not going to do anything about it. So, you’re going to bring this to a department in the company who is…I’ll use this as a euphemism, I mean, not necessarily true. I don’t know what the truth is…in bed with the CEO, people are going to be incredibly reluctant to do so. And CEOs especially have a higher fiduciary duty to the organization.

Melissa Bailey: Well, and it’s interesting, I mean, obviously, to have this happen with Cabot being with the HR department, to me, that just raises the stakes. I mean, it would still be problematic if she was in the IT department or something, but I think it ratchets up the issue when it’s someone in HR.
To go back to Alyssa Stoddard, if she should have disclosed this relationship to somebody, to me, she’s got the same argument that potentially Kristin Cabot has, which is how am I supposed to rat out my boss? And say, rules are being violated, she’s having this personal relationship with the CEO. That seems to me to put her in an almost impossible position.

Bill Grob: You know what, that really is a great point. And here’s the thing, not only should you disclose, but if you’re a vice president, if you’re a leader in HR, whether it’s vice president, chief people officer, chief human resource officer, whatever that position is, not only do you have a duty to disclose, but it could violate your fiduciary duty to the organization. And I think your question better is, who the heck do you tell?
And so here’s the answer. If you have a legal department, you are satisfying your fiduciary duty to the organization by going to your chief legal officer, whoever that is, your general counsel, someone in legal who would be responsible for taking this information in. If you do not have a legal department, then your next best option is you’ve got to go to the board, right? Someone, whoever is the supervisor of the highest-ranking official in that love interest, has to know because they have to have the opportunity to take action. And you, as a leader and fiduciary of the company, you have an obligation to let those individuals know.
So, here’s the problem that we have. If it was Ms. Stoddard and the company says, heck no, it wasn’t. And hopefully it wasn’t because, okay, now we can understand the relationship a little bit better. People didn’t know about it, so therefore, people couldn’t report it either to the chief legal officer or to the board so that they could take immediate action. But if it was Ms. Stoddard, you’ve automatically cast this idea of mistrust among all of HR, because if she knew then how many other people knew? That’s the question that’s going to come to mind. And if I’m an employee and I’m suffering discrimination or harassment in this organization, and I think HR is great at keeping secrets, especially secrets that could hurt the company, then I have no faith whatsoever in the process of reporting.

Melissa Bailey: So, let me ask you to predict some things. Well, first of all, had Byron not resigned, do you think they ultimately would’ve terminated him? Question one. Question two, we have no word, Cabot’s on leave, but we have no word on what her status is going to be. Do you think that she is going to get fired?

Bill Grob: And that’s a really tough question. I mean, here’s what the company should have done, and I think a lot of this was done. I’m not giving legal advice to the company, but in my experience, here’s the things that normally happen in this situation, especially when it involves the highest operational officer of the organization. Remember, the board doesn’t run the company. The board supervises the people who run the company. The only folks who report directly to the board are generally the CEO. So the board doesn’t take the day-to-day involvement of the management and running the operations of the company, but the board has the responsibility to make sure, especially to the stakeholders and the stockholders, whoever it is involved in this particular organization, especially given that recent funding round, they have the obligation to make sure that whoever’s running the company is doing so in an ethical and forthright manner.
And so generally what happens in these situations, especially with people at the top of the organization, is everyone is placed on leave. The people involved are placed on leave immediately, generally with pay, because nobody is pointing fingers yet, but to perform the investigation. That gives you time to immediately launch an investigation, make sure you have the right people that are performing the investigation. And gives you the opportunity to really get into the facts and make a determination with regard to what the factual determinations are and what’s revealed in the investigation to proceed accordingly.
And so the question is, going back to your question. Yes, usually CEOs are fired over things like this. And I will tell you, I know of at least five cases in the past two years where the CEO has been terminated because people have felt, look, if you are engaging in an affair with someone in the organization, regardless of who that is, because no one is your peer level in the organization. If you’re doing that, then we question your judgment. And the question is, can you rehabilitate that? And generally, for that organization, the answer is no. So, I would say 10 times out of 10, unless it’s a very closely held organization or a family-run business, the CEO generally resigns. Usually, it takes a few days because there’s a package associated with that. There’s been a lot of rumors online that I’ve seen that he was negotiating his exit package. Maybe that happened, maybe that didn’t. But either way, he’s out.
The second question is a little bit more difficult. Does Ms. Cabot keep her job? Again, nine times out of 10, most of the time the answer is no. There’s another package that’s negotiated by the individual. Because the question becomes, someone who looks like they were willingly engaged in this kind of relationship, especially the person in the organization who had the highest fiduciary duty to report this. HR is where the buck stops when it comes to reporting inappropriate relationships, whether consensual or not, in the workplace. It stops at the CHRO or the CPO, and she held that position. Can she maintain her credibility with the organization after this has come to light? And the answer generally is no. So, probably we’re going to see exits by both of those individuals.
As long as Alyssa Stoddard was not there and did not know about it, which information would be revealed presumably in the investigation, then she probably is in the best position to assume that position, or at least to assume the head of HR position while they search for another CHRO or CPO. You must maintain integrity in HR or your entire reporting mechanism, the entire enforcement of your handbook, every page of it comes down to HR enforcing those rules. And if you see a department that you’re questioning whether they really do enforce the rules or not, then you’re going to have to clean the whole house or make sure that no one continues to have this dark cloud over their head by the idea that maybe they knew something that they didn’t report, and they were required to do so.

Melissa Bailey: It was interesting to me when the board issued the statement saying, “We’re investigating in common and that the relationship was not disclosed to the board.” I thought, well, disclose? It seems like once you disclose it, they’re like, okay, this is not going to work.
All right, final question for you, Bill. If I’m on a board or if I’m running a company, I mean, how much of what you said needs to be in writing from a policy perspective? In other words, you cannot have a relationship with anyone who reports to you. If you have a relationship with someone who’s not reporting to you, let’s think about lower-level people, you’ve got to disclose it. What should be in a policy, if anything, that would address at least some of what happened here?

Bill Grob: So, let’s get to the idea of a policy. Okay, the CEO should know better, right? You’re in that position; you understand the kind of dangers associated with dating anyone subordinate to your position. And oh, by the way, everyone is subordinate to your position. So, the idea that you don’t do certain things when you eat is absolutely true, especially when you’re in the highest role in the organization. It’s going to be a general policy.
And here’s the thing, if you have a policy, policies will generally state, we’re not adverse to love in the workplace. I mean, think about it. You spend one-third of your life sleeping, you spend one-third of your life at work, so you only got eight hours in the day to go out and try to find a relationship. So, you’re probably meeting most of the people that you meet through your work. That’s why we have these relationships in the workplace. And that’s why we have companies that are sensitive to that issue. So usually, you have a policy that says, look, either it’s prohibited, no one can date anyone else in the workplace. These are fairly extreme policies. We don’t see them a whole lot of them. What we generally have is if you’re going to date someone in the workplace, you must disclose it to…guess who you have to disclose it to?

Melissa Bailey: HR.

Bill Grob: HR. You must disclose it to HR. And then HR will look at the reporting relationship, whether or not there’s any possibility of a conflict, or whether other people in the organization might feel comfortable or uncomfortable with that particular relationship. And some folks, and I’ve seen this in writing, will sign what’s called a love contract. It says, “Hey, look, this individual and I are in a romantic relationship. We understand that it has nothing to do with work. We won’t bring our troubles into work. And if it goes south for whatever reason, we’re not going to blame work for the problem, but we’re going to keep HR informed of at least the status of our relationship. Or if the relationship somehow deteriorates and ends.”
Most companies will have a caveat that supervisors are not permitted to date their direct reports because automatically that casts that concern about favoritism, and you don’t want that happening in the organization. All that does is spread ill will and concern throughout the organization. So, if you have the policy, make sure the policy is even-keeled, that there’s a reporting mechanism. And then HR basically determines whether or not that relationship has a potential for a negative impact on the company. And if so, one of those individuals, usually the person in the superior position, is generally asked to leave or talk about it and find out what the options are if that relationship is needed to continue.
In this case, HR should know you don’t have a policy that says no one in HR can date someone else in the organization. But it doesn’t happen. You don’t have a policy that says the CEO can’t date anybody in the organization, but it doesn’t happen. The ramifications are axiomatic and should be known by the individuals in those positions.

Melissa Bailey: Very interesting. I have learned a lot today, Bill. Thank you. And just for everyone listening, I will continue to follow this story. I think there’s going to be, obviously, a lot of follow-up, potentially even in divorce court. So, I am happy to keep everyone posted.

Bill Grob: And thank you so much, Melissa. I mean, it really is interesting and fascinating from an employment law perspective. Clearly fascinating from a fishbowl perspective. I feel badly for the individuals involved. I mean, what a freak occurrence that you would never think would happen in a million years. But what are you going to do when you take your secret relationship to a place where there’s 65,000 witnesses? It’s a possibility, a remote possibility, but it really is, I mean, fascinating from an employment law perspective. And it’s unfortunate that it’s had to affect so many people, potentially the entire HR department in this organization. And now the organization is sort of back on its heels trying to determine what to do. And I think that knowing that they started an investigation, that would certainly make me feel better as an employee.
The question is how the investors are going to feel about it. The dominoes have started to fall in this. I think there’s going to be a lot more information, certainly a lot more interest on the internet as this moves forward. But I mean, this really is something that is almost unprecedented that I’ve never seen that kind of interest in a story like this. And Melissa, I know I see your presentations every year at our annual workplace strategies program that talks about the wild and wacky in the employment law arena. This could be an entire presentation in and of itself, but I suspect you and our other partner, Joe Clees, are going to be talking about this come our next Workplace Strategies conference.

Melissa Bailey: Oh, without question. We’ve already emailed about it quite a bit. There’s probably some sociologists or multiple sociologists somewhere studying why did this story become so viral? I mean, it’s not as if this kind of thing is unprecedented. What is it about this? Is it the people? Is it Chris Martin? What is it? And that’s a question, obviously, we can’t answer, but I’ll be interested to see if any analysis comes out about that.

Bill Grob: Well, I’ll tell you, and it always is interesting to me. I mean, certainly from a psychological and sociological standpoint, it’s why is this such an interest? And I doubt it’s the Coldplay connection, although I think people are amused by the connection. And Coldplay could have happened anywhere at any kind of event that has any kind of camera coverage. But here’s the thing, why do people go to races? And the unfortunate part that I’ve seen, especially in my position, is people are interested when folks in high positions fail. And that’s just, again, it’s the fishbowl concept, right? You want to see something…unfortunately, to people, this is something of interest to these families. It is truly catastrophic and tragic. But that’s why I think, at least in part, this has become so viral. You’ve got two people at the top of a company, probably earning a pretty good amount of money, and unfortunately, people have an interest in that, how powerful people make mistakes, and how they get exploited in social media.
I think this is part of it. I’m not trying to say that this was appropriate for anyone. It’s unfortunate. I think the most unfortunate part of this situation are the families that have been affected. I’m always sorry to hear that. But I do believe that the company has taken at least the right approach now from what I’ve read. And here’s the other issue that I have, Melissa, and maybe you can comment on this. But I can tell you there was that original mea culpa, as you said, that was posted allegedly by Andy Byron, and then it came out later, no, this isn’t him. The idea of fake postings, I don’t think I’ve ever seen more fake postings in any situation than in this one. Care to comment on that before we say goodbye?

Melissa Bailey: Well, I mean, I don’t disagree. And the statement, I mean, they disavow it very quickly. I think that what rubbed some people the wrong way was the fake statement said, “It’s a shame that this private moment had gone viral without my permission.” And it’s sort of like, okay, well, this is on you. You shouldn’t blame the person.

Bill Grob: My first thought was fire your publicist if that was really your statement, because that was unfortunate.

Melissa Bailey: Well, I mean, I think it all ties into AI and all of that. I mean, I think people are legitimately and should be, to me, legitimately concerned about how easy it is now to impersonate somebody. So, I don’t think this is the last time we’re going to see a fake statement posted or a fake phone call made or whatever the case might be. So I think it’s something that employers and, frankly, everyone is going to have to learn to deal with in some way.

Bill Grob: Yeah, absolutely. And again, Mark Twain, I think it was that said, “Believe none of what you hear and half of what you see.” And unfortunately, that’s a reality on the internet.
But Melissa, thank you so much for joining me In The Breakroom today. This is truly a fascinating story, and I certainly don’t think we’ve seen anything close to the end on it. We’re going to be interested to see how it evolves. I’ll look forward to your comments as we get down the road at Workplace Strategies and our Corporate Council Exclusive Seminar. But thank you so much. This has been really great. And to all of our listeners, thank you for joining us In The Breakroom. And we’ll keep tabs on this and keep you posted.

Melissa Bailey: Thanks, everybody, and thanks for having me, Bill.

Bill Grob: You bet, Melissa. Thank you.

Announcer: Thank you for joining us on the Ogletree Deakins Podcast. You can subscribe to our podcasts on Apple Podcasts or through your favorite podcast service. Please consider rating and reviewing so that we may continue to provide the content that covers your needs. And remember, the information in this podcast is for informational purposes only and is not to be construed as legal advice.