Labour and Employment Law Blog

In 2018, after several years of working at Buzzfeed, Keith Habersberger, Ned Fulmer, Zach Kornfeld, and Eugene Lee Yang started 2^nd Try, LLC (“2^nd Try”). 2^nd Try is a California production company, created and managed by the four individuals (a.k.a. the “Try Guys”). The Try Guys produced and starred in original video content wherein – you guessed it – they try things.

The Try Guys have a loyal social media following, but recently their names have graced media headlines for different reasons. Ned Fulmer was publicly accused of cheating on his wife (another internet personality who has made appearances in Try Guys content) with another employee of the company. Ned Fulmer admitted to a consensual workplace relationship in a public statement, and was removed from the Try Guys.

In their explanatory video, which has amassed over 10 million views, the remaining three Try Guys showed vulnerability, anger, and disappointment when explaining the decision to remove their friend and business partner from 2^nd Try.

While giving their fans some insight into the future of the Try Guys, the video is also a shining example of how to investigate, resolve, and communicate about internal crises.

What can we learn from the Try Guys?

1. Engage Legal Counsel Immediately and Conduct an Investigation

When the Try Guys became aware of the allegations regarding Ned Fulmer’s infidelity, they spoke to Ned Fulmer and the employee he had the affair with. The allegations were confirmed, and the Try Guys immediately engaged employment lawyers, corporate lawyers, and HR professionals to ensure they were proceeding appropriately.

The Try Guys noted how important it was to conduct a thorough review of the facts prior to rendering any decision. Workplace investigations are not only a best practice in responding to complaints or allegations of misconduct, but investigations are also required by law in certain circumstances.

Hiring an external workplace investigator has several advantages. Such investigators are unbiased, thorough, and strategic. They are trained to conduct witness interviews, gather documents, and complete the process in a manner that is procedurally fair. In this particular scenario, an external investigator was especially necessary given that the respondent was a principal of the company. We always recommend that employers thoroughly investigate allegations of misconduct, and retain external professionals as needed.

2. Clearly Communicate the Decision or Result

In a crisis scenario, rumours spread like wildfire. If workers are away from the office, or if there are internal changes or restructuring concurrent with a human resources issue, there will often be gossip. Clear messaging can keep your workforce focused, and minimizes harmful gossip.

In this instance, the Try Guys immediately disclosed that Ned Fulmer was no longer working with them. This statement confirmed the public’s suspicions, and allowed those receiving the message to focus on the remaining information.

Ned Fulmer was a high profile internet celebrity, public figure, and an owner in 2^nd Try. This situation necessitated transparency in order to protect their brand and their employees. While there were (and are) many details that the Try Guys are unable to share due to ongoing legal matters, disclosing Ned Fulmer’s removal and that he engaged in behaviour unbecoming of the brand was necessary in order to foster the loyalty and trust of their employees and the public.

It is not appropriate to share the intimate play-by-play of workplace misbehaviour. However, there is a benefit in measured transparency. We suggest consulting legal counsel prior to making any such public announcements due to the constraints of privacy laws in Canada.

3. Uphold Company Values

The Try Guys publicly emphasized that Ned Fulmer’s behaviour was contrary to the values of 2^nd Try. They explained that they took this matter seriously, and expressly refused to sweep this behaviour “under the rug.” Their actions were directly in-line with their statements. No matter how painful it was to launch an internal investigation against their friend and business partner, and ultimately remove him from their company, the Try Guys found that Ned Fulmer’s conduct was unbecoming of their team. The Try Guys ultimately knew they could not move forward with him as a business partner, and made their decision proudly.

While this was a very public scandal, the Try Guys’ response is a good reminder of the value of transparency and honesty. Employees and the general public find it comforting to know that corporations will uphold their core values, even when it means taking action against a principal of the company.

Outside of the public eye, it is still very important that employers consistently apply their policies and values. An employer must be careful not to let favoritism or biases creep into the way they administer disciplinary measures.

Should you have any questions about investigating workplace misconduct, disciplining employees, or communicating to your workforce, a member of our Labour, Employment & Human Rights Group is available to assist.