Retailer Lowe's Nailed In USERRA Case And Hammered by Feds for Firing Iraq Veteran

November 4, 2011

According to federal prosecutors, in April 2008, Lowe's, the national hardware store chain, hired Matthew King of Oregon, who was a member of the U.S. Army National Guard. In September 2008, King provided Lowe's with a copy of his military orders deploying him to Iraq, where he served for about a year. In May 2010, King returned to Oregon after being honorably discharged.

Re-Hired

Upon his stateside return, King sought unemployment benefits on the basis of his federal military discharge, but he never actually received any unemployment benefits. Thereafter, King sought re-employment with Lowe's and was rehired. 

Just My Imagination: Although not explained in the public releases about this matter, it seems that King may have thought it best to file for unemployment benefits based upon his military service discharge but to also try to get re-hired by his former employer Lowe's.  If that inference is correct, King was essentially trying to cover all his bases in the event that nothing materialized at Lowe's.  If the Lowe's job came through, then King would not need unemployment benefits; if it didn't, he had his paperwork in for his claimed benefits.

Fired

Within a couple of months after rehiring King, Lowe's human resource department determined that King had applied for unemployment benefits before applying to be rehired by the company. For some reason, this prompted a meeting between King and the company's human resources representatives. Why? Dunno. 

SIDE BAR: After more than a quarter of a century of practicing law, try as I might, I can't really come up with a sensible legal explanation for why Lowe's called King on the carpet.  Moreover, even if I could fathom some technical legal issue, on a moral, ethical, and humane basis - are they nuts?  Anyone ever hear of "public relations" - as in a potential nightmare?

Anyway, at this human resources meeting, King allegedly explained that he had applied for unemployment before being re-employed by Lowe's. Apparently, the veteran thought having been discharged by the military entitled him to such benefits - of course, since he never received a penny in unemployment, you'd think that the whole issue was academic. 

You'd also think that someone in Lowe's human resources might have called someone in corporate and discussed the legal ramifications of disciplining a war veteran for merely applying for unemployment benefits - regardless of whether the unemployment benefits application was before, during, or after he was hired.  Maybe that call was made. Maybe some suit at HQ blew it.

Now things truly spiral out of control and into the Twilight Zone. Lowe's didn't merely reprimand King.  No, this turned into Shock and Awe.  Lowe's fired King at the meeting - right there, on the spot, period, end of discussion.

Making It A Federal Case

As a result of being kicked to the street by his former employe, King attempted to provide clarifying information from Oregon's unemployment office to Lowe's. Apparently, even that couldn't get him his job back.

SIDE BAR: The Uniform Services Employment and Reemployment Rights Act (USERRA) requires employers to reemploy a servicemember returning from military service in a position he or she would have attained had they not been called away for military service. After reemploying a service member such as King, an employer also must retain the servicemember in employment for a year unless there is good cause to terminate the employment, altering the "at will" status under which many individuals are typically employed.

In response to King's complaints, the Veterans' Employment and Training Service (VETS) investigated his discharge and determined that the Iraq war veteran had been wrongfully terminated without cause by Lowe's, which resulted in the Department of Labor referring the matter to the Justice Department, whose Civil Rights Division coordinated with the U.S. Attorney's Office in Portland, OR to represent King in his USERRA claims against Lowe's.

Settled

On November 3, 2011, Lowe's agreed to settle the Justice Department's claims pending approval from the US District Court in Portland, OR. The consent decree provides for the payment of a $45,000 lump sum to King for back pay and liquidated damages.

Welcome back, soldier!

To learn more about USERRA and how to contact the local VETS office, visit www.dol.gov/vets/ or www.servicemembers.gov

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A personal message from Bill Singer:

It has been brought to my attention by a number of FINRA member firms that the Small Firm National Adjudicatory Council contested election has gone from the gutter, into the sewer, and now percolates in a cesspool. 

As you likely know, I was among the earliest proponents of contesting elections against NASD and then FINRA, I long counseled many dissidents on how to launch their campaigns, and I provided material support to further their efforts.

Unfortunately, as more folks sought to contest the same FINRA elected offices, more elbows started to swing and any common cause in furtherance of electing the most qualified candidate gave way to childish name-calling, and worse.  Having been on the receiving end of some of the most vile slander from cowardly anonymous authors, I abandoned the FINRA election scene.

In August 2011, FINRA's Nominating and Governance Committee nominated David M. Sobel for the Small Firm NAC seat.  I truly wish that David had declined that nomination and chosen to run as a petition candidate because I have little faith and confidence in the integrity of FINRA's in-house nominating process, which too often yielded hand-picked cronies.  Nonetheless, I reluctantly supported David's nomination because of his superb qualifications and my expectation that he will prove to be an outstanding, independent member of the NAC.

Subsequent to David's nomination, another individual chose to seek nomination as a contested candidate via the petition route.  I long respected that candidate's interest in industry reform.  If I had known of her interest in contesting the NAC nomination, I would not have published my August 5, 2011, support for David Sobel and would simply have opted to stay silent and on the sidelines.  The FINRA Small  Firm community would have been blessed with having a choice between two qualified and sincere candidates -- no one would have lost under those circumstances and this year's loser would likely have emerged as the favorite for the next open seat.

Although I have not personally met either of the candidates, I have maintained active email communications with them over the years, had numerous telephone conversations with each, and know them both to be sincere reformers who truly care about the causes that they advocate. 

Sadly, I learn that Sobel has become the victim of the most puerile and vicious attacks. The anticipated robust debate of a contested election has degenerated into little more than doing whatever it takes to get elected.  The rhetoric and the personal attacks against Sobel are all to reminiscent of the same language that was directed against me. 

Oddly, if the intent was to harm Sobel, the effort has misfired.  Not only have many voters been disgusted by the unnecessarily personal nature of the vitriol, but it has energized more support for Sobel than it's likely hope of generating support for his challenger.  In my case, it has forced my hand and motivated me to regrettably choose between two folks that I admired and respected.

Unequivocally, I urge all FINRA small firm members to vote for David Sobel for the NAC.  Not only will your vote elect a qualified candidate, but it will also send a much-needed and long overdue message that FINRA's Small Firm community is fed up with the counter-productive and unacceptable politics that has infected contested elections for too long. 

I re-post my original endorsement of David Sobel from August 5, 2011, below:

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Bill Singer Supports the National Adjudicatory Committee Candidacy of David M. Sobel
Written: August 5, 2011

On August 5, 2011, the Financial Industry Regulatory Authority ("FINRA") announced the upcoming election for two open seats (one each for the Large Firm and the Small Firm members) on its National Adjudicatory Council ("NAC"), which comprises 14 members: 7 industry (two Small Firm, one Mid-Size Firm, two Large Firm, and two At-Large Industry Members); and 7 non-industry (at least three are Public Members). 

Service is typically for a three-year term. Those wishing to contest FINRA's Nominating and Governance Committee nominees will have 45-days to file the requisite petitions entitling them to be certified for the ballot.

The NAC is not an unimportant cog in the FINRA regulatory wheel -- to the contrary, it is among the most critical components. The NAC reviews all FINRA hearing panel decisions, statutory disqualification applications, and serves in the additional role as FINRA's appellate panel. 

Small Firm Nominee David M. Sobel

FINRA's Nominating and Governance Committee nominated David M. Sobel for the Small Firm NAC seat.

I have known David Sobel for many years as someone who is unequivocally committed to regulatory reform.  He is an industry veteran who's been there and done that -- he understands the pressures of your business and has the legal training to recognize the merits (or lack thereof) in the various FINRA matters that will be presented to him. Frankly, I can't think of many individuals that I have known after some three decades on the Street who are more qualified and suited for the position.

I urge you to cast your Small Firm vote for NAC candidate David M. Sobel.

Sincerely,

Bill Singer

FINRA's Official Profile for David Sobel:

David M. Sobel, Esq. is currently executive vice president, general counsel and chief compliance officer of Abel/Noser Corp., a FINRA/NYSE member broker-dealer. He was previously a partner at The Goldstein Law Group, P.C., where he concentrated in the areas of broker-dealer compliance/regulation, securities litigation, including arbitration and mediation, and disciplinary/enforcement matters at the SEC, NYSE, AMEX and FINRA. Mr. Sobel was a floor member of the New York Stock Exchange from 1982 through 1991 as a floor broker for both H.A. Brandt & Co. and First Options of Chicago, and he was president of his own NYSE member firm, Ampro Securities, Inc. After leaving the NYSE floor, he was a senior equity trader/market maker for Trimark Securities.

Mr. Sobel has a Master of Science degree from Brooklyn College and a law degree from Pace Law School, where he was an editor of the International Law Review and recipient of the Dean's Award. He has served as a FINRA arbitrator, on FINRA's District 10 Committee and on FINRA's Small Firm Advisory Board. He has also served on the Board of Directors of the National Society of Compliance Professionals and as chairman of the board of the NAIBD. August 5, 2011

Mr. Sobel has been quoted in or interviewed by: Compliance Reporter, WSJ.com, Complinet, Trader's Magazine, Wall Street Letter, BD Week, Op/Risk and Compliance Magazine, Institutional Investor News and Dow Jones Newswire, and is a frequent speaker at securities conferences for SIFMA, NSCP, NRS, NAIBD, FMW and Strategy Institute. Recent conference topics include Managing Risk at Small BD; Internal Audits; Supervisory Responsibility, Financial Responsibility, Fraud Prevention in Portfolio Management, Social Networking, Foundations of Compliance, Best Practices and Forensic Compliance.

He is admitted to practice before the Supreme Courts of New York and Connecticut, the U.S. District Courts for the Southern and Eastern Districts of New York and the Second Circuit Court of Appeals. He is a member of the New York County Lawyers Association, the New York State Bar Association and the American Bar Association.