9th Circuit: USERRA claims are subject to arbitration

Joining the mainstream in Ziober v. BLB Resources (9th Cir 10/14/2016) [Opinion text], the 9th Circuit has ruled that neither the text nor the legislative history of the Uniformed Services Employment and Reemployment Rights Act (USERRA) demonstrate a congressional intent to preclude the compelled arbitration of USERRA claims.

While employed by BLB Resources, Kevin Ziober, signed an agreement requiring the arbitration of legal disputes:

To the fullest extent allowed by law, any controversy, claim or dispute between Employee and the Company . . . relating to or arising out of Employee’s employment or the cessation of that employment will be submitted to final and binding arbitration before a neutral arbitrator . . . for determination in accordance with the American Arbitration Association’s (“AAA”) Employment Arbitration Rules and Mediation Procedures (excluding mediation), including any subsequent modifications or amendments to such Rules, as the exclusive remedy for such controversy, claim or dispute.

Ziober told the company that the Navy was recalling him to active duty in Afghanistan. On Ziober’s last scheduled day of work, the company informed him that he would not have a job upon his return to civilian life. When he returned, he sued claiming violation of USERRA. The employer moved to compel arbitration, the district court granted the motion, and the 9th Circuit affirmed.

The legal rules are pretty simple. The Federal Arbitration Act requires enforcement of arbitration agreements. This can be overridden by a contrary congressional command, but you have to show that Congress intended to preclude a waiver of a judicial forum for the claims at issue. No such contrary congressional command appears in USERRA.

Other circuit courts have reached the same conclusion: Landis v. Pinnacle Eye Care, LLC, 537 F.3d 559 (6th Cir 2008) [Opinion text]; Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir 2006) [Opinion text]; Bodine v. Cook’s Pest Control, Inc (11th Cir 07/29/2016) [Opinion text].