In this episode of In The Breakroom, host Bill Grob (shareholder, Tampa) is joined by Melissa Bailey (shareholder, Washington, D.C.) to discuss the viral Coldplay concert scandal involving high-profile executives. Melissa and Bill discuss the implications of workplace relationships, the importance of HR integrity, and the legal ramifications for companies, including the PR and financial consequences of going viral. Tune in to hear their analysis on how employers should navigate these tricky situations and the broader impact on organizational trust and culture.
Transcript
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.
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