An attorney who represented Wells Fargo denied a Labor Department investigator access to employee records, saying she might soon be part of the incoming Trump administration, according to a letter from Wage and Hour Division administrator David Weil obtained by Bloomberg BNA.
“It certainly calls into question her integrity,” Cathy Ruckelshaus, general counsel and program director at the National Employment Law Project, told Bloomberg BNA Jan. 6. “It’s simply a delay tactic at best, and at worst if there’s this indication that she’s going to be that investigator’s boss then that’s a threat to someone who might be her employee,” Ruckelshaus said.
Weil’s letter dated Dec. 16 describes two incidents in which Tammy McCutchen said she was under consideration for a position in the Trump administration. The first occurred “on or about” Nov. 16 when McCutchen spoke with an assistant district director regarding an investigation of her client Majestic Cleaning Inc.
“The second and more serious incident occurred on November 29, 2016” with WHD staff regarding its investigation of a Wells Fargo facility in Concord, Calif., Weil said. McCutchen told the lead investigator that she had advised her client not to allow access to records or interviews until she had an opportunity to review the requested records, he said.
“When our investigator responded that the agency retains the authority to conduct investigations as delegated to us by the Secretary of Labor and that we planned to proceed with visiting the establishment the next day to conduct interviews, you responded that in a few weeks a new Administration would be in place and that you might be a part of that Administration,” Weil wrote. “Based on this prospective position, you stated that you would not allow us access to the building for interviews.”
Jason Surbey, a DOL spokesman, told Bloomberg BNA Jan. 6, “I can say, as a matter of policy, the department declines to comment on matters related to open investigations.”
The Trump transition team told Bloomberg BNA Jan. 6 that “Ms. McCutchen is not an advisor to the Transition, official or otherwise.” The team wouldn’t say whether she’s under consideration for a position in the administration or whether her candidacy changed as a result of the Weil letter.
McCutchen was WHD administrator under President George W. Bush, from 2001 to 2004. Bloomberg BNA hasn’t reported her as being part of the Trump transition team or under consideration for a position in the administration.
“I dispute David Weil’s recitation of events and unequivocally deny any improper statements or conduct,” McCutchen said in a statement provided by her firm, Littler Mendelson PC. “Never before have I been the subject of assertions such as those contained in the letter and I believe that my reputation for collegiality, ethics and professionalism, both while defending our firm’s clients and during my previous tenure at the WHD, is well-known.”
“I should also note that, in the instances referenced, our client has been completely transparent and cooperative in the process, including with regard to providing documents and access upon request,” McCutchen said. “The investigation was not hampered in any way.”
“The investigator provided Wells Fargo with less than 24 hours’ notice that four investigators would be at the facility to conduct interviews and Wells Fargo granted access within 72 hours’ of DOL’s request, and has already provided, or is in the process of providing, all data and documents requested by the DOL,” McCutchen said. “In short, Wells Fargo has complied with every DOL demand.”
Jennifer Dunn, the bank’s senior vice president for communications, provided a statement that said “Wells Fargo is fully cooperating with the Department of Labor and will continue to do. We are unaware of any basis for these surprising allegations which are counter to the commitment we have to fully cooperating with all government investigations.”
The DOL began investigating Wells Fargo after Sen. Elizabeth Warren (D-Mass.) and a group of Democratic senators in September called on the Labor Department to look into possible wage-and-hour irregularities at the bank. Their letter came a few days after a Senate committee grilled then-CEO John Stumpf about sales staff meeting quotas by opening thousands of accounts in customers’ names without their authorization.
In response to the senators, DOL Secretary Tom Perez said he had “directed enforcement agencies within the Department to conduct a top-to-bottom review of cases, complaints, or violations concerning Wells Fargo over the last several years.”
Ruckelshaus said “even if she weren’t on the transition team, I think a person who’s coming from the Wage and Hour Division should know this kind of intimidation is not normal and it’s completely inappropriate. I’ve never seen an employer attorney newsletter or advice to clients say that you should object or obstruct a federal agency investigation.”
John Ho, a wage-and-hour attorney who represents employers in Cozen O’Connor’s New York City office, told Bloomberg BNA Jan. 6 there are occasions when he’s told clients to deny entry to a WHD investigator. “There may be facts that I would tell a client to prevent entry and get a search warrant,” he said.
“But usually the investigators, if you work with them, are pretty good,” Ho said. “They understand they don’t have the right to disrupt your business.”
To contact the reporter on this story: Jon Steingart in Washington at email@example.com
David Weil's letter is available at http://src.bna.com/leV.
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