Legal loophole allows companies to fire military reservists who go to war

Kevin Ziober was a lieutenant in the Navy Reserve in 2012 when he received deployment orders to deploy to Afghanistan. On his last day of work before leaving, dozens of his co-workers gathered around for a sendoff. There was with a cake and balloons and a card covered with farewell messages. And then, shortly after that party, Ziober says, he was summoned to the human resources office — and fired.

Ziober The Navy officer believes he was fired because of his military service and the inconveniences it caused his employer. If so, that would be a violation of the federal law. The that explicitly seeks to protect military reservists from employment discrimination based on their military commitments, the Uniformed Services Employment and Reemployment Rights Act, known as USERRA, exists to protect military reservists against such discrimination.  

Traditionally, someone in his position like Ziober would consider suing his employer and letting a judge or a jury decide whether the dismissal was fair. But Ziober may never get that chance his day in court. That’s because his employer had asked him — Ziober says he was "forced" — him -- to sign an "arbitration agreement," a fine-print legal document that surrenderings the right to sue and agreeings to resolve any or all disputes outside of court.

But do The question of whether such those arbitration agreements actually apply to USERRA? That's now rights issues is a question for that is now reaching the highest rungs of the American legal court system.

Ziober's case has filed a lawsuit that will be heard in July by the highest federal court in California, the Ninth Circuit Court of Appeals. The Navy officer He wants to sue his former employer, but first he must convince the judge that he has the right to do so sue.

Ziober’s former employer, a real estate management firm called BLB Resources, disputes his the Navy officer's version of the events, saying Ziober’s work performance had declined, and that the real reason for his firing became necessary when by that the federal contract to which he was assigned to was not renewed. Regardless Either way, the arbitration agreement is firmly grounded in law, the company's attorney said. 

Today, it's hose agreements very common: It’s almost impossible to register sign up for a credit card or cell phone service without also signing an arbitration agreement, often buried in fine print, which essentially prevents you, the customer, from ever suing that company in question. Employers, especially large corporations, are useing them those agreements to shield themselves from a host of liabilities that include personal injury or sexual harassment. And dozens of class action lawsuits, like a recent one filed by employees of Taco Bell, are thrown out of court based on these arbitration agreements.

But USERRA rights might be different. Protecting service members from employment discrimination is directly linked to military readiness and the Defense Department’s ability to recruit and retain more than 800,000 part-time troops every year. The point of the 1994 law was established to ensure that the veteran "who was called to the colors not be penalized on his return by reason of his absence from his civilian job," wrote one of Ziober’s attorneys, Peter Romer-Friedman.

Some lawmakers in Congress on Capitol Hill are also are worried about the issue. Connecticut Sen. Richard Blumenthal, a Democrat, has proposed a law that would eliminate any ambiguity in the USERRA law and state explicitly that service members cannot be blocked from the court system by arbitration agreements.

Another service member has a case moving up to the federal appellate courts as well. They, which are one notch below the U.S. Supreme Court.

Army Reserve Sgt. Rodney Bodine was hired got a job several years ago by with a pest control company in Alabama. Shortly and shortly after he stared the job, his supervisor "began making negative comments about Bodine’s military obligations, including that it would be best if Bodine would get out of the military," according to Bodine's lawsuit.

A district judge threw out the lawsuit, not because of any evidence that the employer complied with the USERRA law but because Bodine has signed an "employment agreement" that included a line saying that said: "All disputes, controversies or claims of any kind and nature between the parties hereto ... shall be resolved exclusively by ... alternative dispute resolution mechanisms."