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Thank You For Your Service?

By   /  November 17, 2016  /  No Comments

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By Eugene Mok

Recently the United States Court of Appeals for the Ninth Circuit delivered a concerning blow to veteran and service-member employment rights.  Kevin Ziober, a Lieutenant (LT) in the United States Naval Reserves, claimed that his civilian employee fired him because he was going to be deployed to Afghanistan, in direct conflict with federal laws designed to avoid such instances.  The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was federally enacted to ensure veterans and service members are not disadvantaged in their civilian careers due to their service and discourage discrimination in employment based on past, present, or future military service.  Specifically, USERRA requires employers to allow reservists, working for them in a civilian capacity, to return to their jobs after periods of active-duty activation.  

In 2012, prior to his scheduled deployment, LT Ziober was working for BLB Resources, a real estate management company.  Ziober notified the company of the deployment and fired on the last day of work before leaving to serve his country.  Typically, USERRA protects against unlawful lay-offs of this manner.  However, when Ziober first started working for BLB Resource, he signed a contract including an arbitration clause, typically barring the ability to sue the employer outside of an arbitration court.  Ziober sued in federal court after he was fired, alleging discrimination and violation of USERRA.  The district-level court determined that the arbitration agreement prevented Ziober’s right to sue under USERRA.  The Ninth Circuit affirmed that decision, stating that USERRA does not specifically provide protection against enforcement of arbitration agreement.  In the court opinion, Judge Carney acknowledges the Supreme Court and the Ninth Circuit have repeatedly affirmed the principle that statutes concerning federal employment rights for military members are to be liberally construed for the benefit of those who serve.  Unfortunately, the Court could not find compelling language in USERRA to support a reversal.  

However, Judge Carney does provide that if the court is misinterpreting USERRA, Congress could easily correct this issue with legislation.  Senator Richard Blumenthal of Connecticut has proposed a law that would hopefully eliminate ambiguity in USERRA and explicitly prohibit arbitration agreements barring service members to pursue litigation against employers.  Strengthening the weight of this proposal, the Department of Justice stated it is “especially supportive” for Blumenthal’s proposal that would clarify enforcement of USERRA against arbitration agreements.  USERRA was enacted to support those that have voluntarily chosen to serve their country.  Seemingly, most employers would be more than willing to support their military employees.  Unfortunately, the reality may be that occasionally the absence of an employee, albeit for military service, may be too great of a burden for the business to function efficiently.  In holding that USERRA does not block arbitration agreements from preventing military employees from pursuing lawsuits, perhaps the Ninth Circuit is highlighting an inherent flaw in USERRA and pleading Congress to act.  LT Ziober now holds a different civilian job in California, however, the Ninth Circuit decision may now be used as a precedent against other service members in similar situations.  Until Congress acts, what effect does the Ziober decision have on the numerous reservists serving today?  Consequently, what effect will that have on US national security interests?  

The military invests significant resources and time to ensure high levels of morale and well-being of its service members.  It is commonly thought that an appreciated employee produces more effective work products, enhancing overall efficiency.  Service members directly execute important operations and collectively provide US national security.  Many of those service members are reservists and are standing watch and executing orders at this exact moment.  At the end of the day, service members will continue to do their jobs no matter the outcome of court decisions and legislation affecting USERRA enforcement.  However, it cannot be ignored that the Ziober decision is received as a clear disappointment throughout the military community.  Lawmakers do not hesitate to thank service members for their service.  Proposals like Blumenthal’s are on the floor.  Perhaps it’s about time Congress reflects gratitude through definitive legislation.  


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