A new survey about continued bad behavior in the finance industry landed with a thud this month. It came out around the same time that five big banks agreed to pay more than $5 billion to settle criminal charges that they manipulated interest or currency exchange rates.
The findings – and coincidental timing – were a stark reminder that despite all the talk about cultural reform, plenty of Wall Street workers say they still witness wrongdoing at their firms. About a third of the more than 1,200 U.S. and U.K. finance workers said they felt bonus plans could pressure employees to compromise their standards. And 23 percent said it’s likely their peers had engaged in unethical or illegal activity to get a leg up. That’s nearly double the number from 2012.
The survey also asked about policies in place or agreements employees had signed that might prevent them from disclosing any wrongdoing to the government. The responses show that some workers still think they face obstacles in doing so, even five years after the Dodd-Frank Wall Street Reform and Consumer Protection Act boosted protections and incentives for whistleblowers.
The report was co-authored by the University of Notre Dame and Labaton Sucharow, a law firm that represents whistleblowers and commissioned the survey. It found that 10 percent of employees said they have signed a confidentiality agreement they thought prohibited them from reporting unethical or illegal behavior to authorities, and 16 percent said they were subject to a policy with the same intention.
When looking just at senior employees in finance, those numbers were even higher: 25 percent of those earning $500,000 or more said they had signed such an agreement, and 28 percent said a policy was in place.
The study, it’s worth noting, doesn’t prove that explicit agreements exist at exactly these rates. What it does show is that employees perceive their agreements and policies to prohibit speaking out, which some would argue ultimately has the same chilling effect.
Jordan Thomas, a partner with Labaton Sucharow who helped establish the Security and Exchange Commission’s whistleblower office when he worked there, says he’s seen that interpretation — whether accurate or inaccurate – silence potential whistleblowers. “There are people walking into my office who tell me about wrongdoing and ultimately choose not to go forward because of these agreements,” he said.
Confidentiality or nondisclosure agreements and policies can take a range of forms. According to Thomas, they sometimes include overly broad company policies that warn against speaking negatively about the company or sharing information learned while employed. Workers may interpret those as prohibiting whistleblowing, even if that wasn’t the original intent.
Though he says he has seen a few (illegal) agreements that expressly say employees shouldn’t report bad news to authorities, what he sees much more often are agreements, typically as part of a severance deal, that have provisions requiring employees to waive future monetary rewards and to notify the company if they have reported anything to the SEC or do so in the future.
Such secrecy agreements were covered in an in-depth investigation by The Washington Post last year, and the SEC recently announced its first enforcement action against a company for “improperly restrictive language in confidentiality agreements with the potential to stifle the whistleblowing process.”
In a speech in April, SEC Chair Mary Jo White said the commission had learned some companies may be requiring employees to sign agreements “mandating that they forego any whistleblower award or represent, as a precondition to obtaining a severance payment, that they have not made a prior report of misconduct to the SEC. You can imagine our Enforcement Division’s view of those and similar provisions under our rules.”
Other attorneys who represent whistleblowers say they too have seen companies tamp down more. Rachel Geman, a partner in the New York office of Lieff Cabraser Heimann & Bernstein, said she hasn’t seen agreements that say “thou shalt not go to the government,” but she has seen a rise in companies issuing counterclaims against whistleblowers and policies asking employees to report fraud to higher-ups before going to authorities. Such actions, Geman said, “cluster together to give employees the sense that they’re at best between a rock and a hard place, and at worst in a position where they can’t come forward.”
But Gregory Keating, who co-chairs the whistleblower practice at Littler Mendelson, an employment law firm that represents companies, took issue with the report’s findings. “I don’t share the view, remotely, that employers have intentionally in any way crafted these agreements to gag people,” he said. Instead, the policies were originally designed to protect company property or intelligence, he stated, not “because there’s some nefarious plot in the C-suite to try to stop all would-be whistleblowers.”
Keating says he has seen an “enormous uptick” of another sort: employers reaching out to ask how they can fix any potential confusion in their confidentiality agreements. He often suggests adding language to clarify that the agreement doesn’t prevent employees from reporting to or communicating with government agencies.
Whether it’s being driven by murkiness in current corporate policies or any real effort to stifle whistleblowers by corporations, the perception of such confidentiality agreements – particularly among highly compensated Wall Streeters – isn’t very encouraging. Says Geman: “If in fact even sophisticated folks have as a takeaway message that [they] can’t talk to anyone, to me that goes to show that such policies can work together to have a dramatic chilling effect.”
© 2015, The Washington Post