CNN has just found a smoking gun that should enable prosecutors to bring charges against Wells Fargo CEO John Stumpf.
We were skeptical early on about the bank’s pious claims that it had fired 5,300 employees for creating phony accounts from 2011 to 2015. Since it took outside intervention for the bank to stop misconduct that had gone on for years and was central to the bank’s strategy, it was pretty certain that until recently, any refusniks would be fired. And that meant Wells Fargo would be highly motivated to bolster its “See, we were trying to do the right thing but it was harder to do than we thought” story by inflating the number of people it said it fired in connection with the fraud by including ones fired for bucking their bosses and refusing to participate.
Mind you, the CNN story didn’t establish that Wells Fargo had larded up the numbers by including internal dissenters it fired. But what it has found is far worse: the bank terminated employees who made use of formal whistleblower procedures to object to account fakery and other abuses, like forging signatures.
Not only does the story have multiple sources, most of whom let their names be published, but it also includes a source from Wells Fargo who confirms that the “can the whistleblowers” process was institutionalized. For instance, the Human Resources department gave the business units tips as to how to created trumped-up charges so as to cover for the real reason for the firings. Per CNN:
Now CNNMoney is hearing from former Wells Fargo (WFC) workers around the country who tried to put a stop to these illegal tactics. Almost half a dozen workers who spoke with us say they paid dearly for trying to do the right thing: they were fired…
[Bill] Bado not only refused orders to open phony bank and credit accounts. The New Jersey man called an ethics hotline and sent an email to human resources in September 2013, flagging unethical sales activities he was being instructed to do.
Eight days after that email, a copy of which CNNMoney obtained, Bado was terminated. The stated reason? Tardiness….
One former Wells Fargo human resources official even said the bank had a method in place to retaliate against tipsters. He said that Wells Fargo would find ways to fire employees “in retaliation for shining light” on sales issues. It could be as simple as monitoring the employee to find a fault, like showing up a few minutes late on several occasions.
“If this person was supposed to be at the branch at 8:30 a.m. and they showed up at 8:32 a.m, they would fire them,” the former human resources official told CNNMoney, on the condition he remain anonymous out of fear for his career.
CNNMoney spoke to a total of four ex-Wells Fargo workers, including Bado, who believe they were fired because they tipped off the bank about unethical sales practices.
Another six former Wells Fargo employees told CNNMoney they witnessed similar behavior at Wells Fargo — even though the company has a policy in place that is supposed to prevent retaliation against whistleblowers. CNNMoney has taken steps to confirm that the workers who spoke anonymously did work at Wells Fargo and in some cases interviewed colleagues who corroborated their reports.
The fact that a former HR staffer confirmed that the bank set out to fire whistleblowers is deadly. It means that the internal ethics line and other channels that John Stumpf piously cited to claim that nothing was wrong with Wells Fargo’s culture were in fact cynical shams designed to get rid of troublemakers who’d question shoddy practices. The fact that Bado was canned a mere eight days after sending an e-mail to human resources also supports the charge of the anonymous HR source that Wells Fargo had established procedures for firing whistleblowers. There is no way any serious investigation would take place in only eight days.
Punishing whistleblowers, particularly on a systematic basis, is flagrant misconduct. This implicates a large number of executives, including the general counsel, the head of HR, and potentially outside counsel and board members, as well as Stumpf and Wells Fargo’s president and COO, Timothy Sloan. How could anyone have signed off on this arrangement?
Just one example of how punishing whistleblowers is against the law: after the Enron bankruptcy, the Sarbanes Oxley Act was designed to prevent the “I’m the CEO and I know nothing” defense by requiring at a minimum that the CEO and CFO personally certify the accuracy of financial reports and the adequacy of internal controls. It also required public companies to create secure channels for internal whistleblowers to report if they saw what looked like legal or regulatory violations. From the National Whistleblower Center:
Unlike most whistleblower laws, the SOX’s whistleblower protection provisions are not limited to providing a legal remedy for wrongfully discharged employees. In addition to containing employment-based protections for employee whistleblowers, the law contains four other provisions directly relevant to whistleblower protection. First, the law requires that all publicly traded corporations create internal and independent “audit committees.” As part of the mandated audit committee function, publicly traded corporations must also establish procedures for employees to file internal whistleblower complaints, and procedures which would protect the confidentiality of employees who file allegations with the audit committee….
Fourth, Section 3(b) of the SOX contains an enforcement provision concerning every clause of the SOX. This section states that “a violation by any person of this Act [i.e. the SOX] . . . shall be treated for all purposes in the same manner as a violation of the Securities Exchange Act of 1934.” This section grants jurisdiction to the SEC to enforce every aspect of the SOX, including the various whistleblower-related provisions. It also provides for criminal penalties for any violation of the SOX, including the whistleblower-related provisions….
In addition to these four provisions, the law contains an employee protection provision which permits whistleblowers to file a complaint before the U.S. Department of Labor alleging unlawful retaliation
The CNN story pointed out that retaliating against whistleblowers is not kosher:
“It is clearly against the law for any company (or executives of such companies) to try to suppress whistleblowing,” Harvey Pitt, former chairman of the SEC, told CNNMoney in an email.
A number of statutes — including Sarbanes-Oxley and Dodd-Frank — “make this unambiguously clear,” Pitt said.
This development confirms that Wells Fargo is rotten to its core and John Stumpf needs to be prosecuted. However, even though I indicated that he was unlikely to survive ten more days based on his abject performance at the Senate Banking Committee on Tuesday, before the CNN story broke, he may have his sell-by date extended by virtue of being summoned to appear before the House Financial Services Committee next week, on September 29. I doubt the board would oust Stumpf before then. It would be dangerous to cut him loose; Congress could still call him (although he would probably refuse to appear) and having an interim CEO stumble and mumble his way through the hearings would not look good. And even if the board has already decided to move against Stumpf, they’d likely want him to believe he has their support so that he is motivated to do the best job he can next week.
The CNN story is certain to lead more wronged former employees to speak up to the media, regulators, Congressmen, and prosecutors. That means Stumpf and his fellow Wells Fargo execs are in even hotter water than before. Couldn’t happen to a more deserving bunch.