Substantive Rights Created By USERRA Are Not Lost By Arbitrating.
On the one hand, on the other hand . . . On the one hand, there is a liberal federal policy favoring arbitration agreements. On the other hand, the Federal Arbitration Act’s arbitration mandate can be “overridden by a contrary congressional command.”
Does the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) prohibit the compelled arbitration of claims arising under its provisions? No, holds the Ninth Circuit in an opinion authored by Judge Murguia. Ziober v. BLB Resources, Inc., No. 14-56374 (9th Cir. 10/14/16).
USERRA establishes employment rights for returning servicemembers. Kevin Ziober told his employer that the Navy was recalling him to duty in Afghanistan, and on the last scheduled day of work, his employer told him that there would be no job upon his return.
Mr. Ziober sued, and the employer successfully enforced its arbitration agreement with him.
USERRA provides a right to sue in federal district court. Relying primarily on CompuCredit v. Greenwood, 132 S. Ct. 665 (2012), the Ninth Circuit explains that this right is a procedural right, not a substantive right, and absent a clear legislative mandate, the procedural right to arbitrate can be enforced, because it does not affect the substantive rights created by USERRA.
Concurring, Judge Watford is a skeptic. He explains that the statute appears to confer a right to sue in district court, and includes what can be interpreted as a non-waiver provision. Furthermore, legislation benefitting servicemembers is to be liberally construed in their favor. But because there is a muddled legislative history, Judge Watford writes, “I don’t think it’s prudent for us to create a circuit split by reversing the district court’s ruling, particularly given the ease with which congress can fix this problem.” And we all know how easily Congress fixes problems these days.