Lauren Connell, Managing Associate at The Volkov Law Group, joins us again for a posting on the Wells Fargo scandal.  Lauren can be reached at [email protected].

Wells Fargo’s cultural tone is not easily segregated between “top,” “middle” and “bottom.”  Despite the recent cross-selling scandal, in which the CFPB led an enforcement action whose fines total a whopping $185 million, Wells Fargo’s CEO John Stumpf reluctantly informed a Senate Committee last Tuesday that no senior executives had been fired. He himself made a cool $19.3 million at the height of the scandal in 2014.

The CFPB penalty does not seem proportional when you consider that the top executive, Carrie Tolstedt, who ran the community banking division, which was responsible for most of the egregious conduct, will receive a payment of $125 million when she retires at the end of the year.  She has earned a base salary of $1.7 million for the last four years and was typically awarded around a million a year in bonuses and stock.

Meanwhile, Wells Fargo has fired 5,300 employees in total, all working within Tolstedt’s community banking division. When pressed about who had been fired by Senator Elizabeth Warren, Stumpf’s weak response indicates that the highest level employee to be dismissed over this scandal were regional managers.

Wells Fargo’s conduct reinforces a recurring theme when it comes to corporate responses to misconduct — let the higher ups go and slam the middle levels with firings and increased training.  Again, as always, the key ingredient missing is accountability.

So while Wells Fargo’s top executives talk a big game, middle managers and the employees who actually interact directly with customers on a regular basis are telling a much different story.  Middle management will suffer and the key supports needed for an ethical culture will start to suffer.  It is inescapable that Wells Fargo managers and employees will see this scandal as just another example where top management evades and middle management bears the brunt of the organization’s response.

Mood in the middle is a compliance concept that is equally as important, if not more so, than tone at the top. It is your company’s managers and employees who are actually implementing policies that have the most direct control over the company’s conduct. It doesn’t do much good to have senior executives talking about ethical business practices while simultaneously rewarding behavior that could only be accomplished through illegal and unethical means.

But you don’t hear compliance professionals talking about mood in the middle very often. On the other hand, tone at the top is viewed as critical. In reality, we as a profession may want to rethink this balance.  Tone at the top is essential but the message has to carried through to middle and lower levels of the company.

To further complicate the picture, mood in the middle may be even more difficult to measure and manage than tone at the top. We often see a laundry list of methods to improve tone at the top: training for senior executives, CEO statements emphasizing ethical behavior (often prepared by the compliance department for sign-off with little substantive input), or senior executive attendance at company events focusing on ethical behavior and conduct.

What about mood in the middle?

To measure this you have to get down into the weeds. You have to talk to managers and employees, send them surveys, and otherwise secure direct, qualitative feedback on how a company’s policies and procedures are working in the “real world.” Compliance departments would also be well served by thinking about how compliance-based policies align (or don’t) with the policies of other departments. For example, is human resources offering variable compensation for actions that are high-risk from a compliance perspective? Or is distribution rewarding employees for signing on distributors regardless of whether or not they have (or can) pass a due diligence check?

As compliance professionals, it is easy to lose sight of policies and procedures as they are implemented from the top down. As Wells Fargo can tell you, this can be a critical, and expensive, mistake.