Nineteen lawmakers are testing their luck at the Supreme Court, asking the justices to take up a case on whether military reservists’ unfair dismissal claims can be forced into arbitration by their civilian bosses.
Because the case involves veterans’ rights, the legislators say they are hopeful the Supreme Court of John Roberts will temper its usual affinity for agreements waiving employees’ right to sue.
“The tragic irony could not be more dramatic,” said Connecticut Democrat Richard Blumenthal, the senator spearheading a friend-of-the-court brief filed in mid-May by six senators and a 13 House members, including three Republicans. “They’re serving and sacrificing so we have these rights, and then they come home and they are denied those very rights that they are fighting to uphold.”
Both returning service members’ civilian workplace rights and the right of companies to require arbitration have repeatedly been upheld by the high court. This case pits one right against the other.
The filing asks the court to overturn an October appeals court ruling against Kevin Ziober, a Navy reservist who was terminated in 2012 by BLB Resources, a real estate company and contractor for the federal Department of Housing and Urban Development. Ziober alleges that on his last day of work at BLB before deploying for a year to Afghanistan the company told him he was out of a job.
“It was a shock,” Ziober said in an interview. “I just didn’t have any expectation of that being the consequence of going to serve your country.” Ziober says he was told that the reason was that the federal contract he was working on might run out by the time he returned. The contract was still in place when he returned.
The company denied wrongdoing, saying that because of “subpar results” from Ziober, management had decided not to include him in a bid for a new government contract. “BLB Resources has great respect for those serving our country, and the conclusion of Mr. Ziober’s employment was in no way connected to his membership in the uniform services or his deployment,” BLB said in a statement provided by its lawyer.
Upon returning to the U.S. after his tour of duty, Ziober brought a lawsuit against BLB under the Uniformed Services Employment and Reemployment Rights Act, a 1994 law banning companies from discriminating against employees for taking time away from work to serve in the reserves. In response, BLB motioned for Ziober’s case to be handled in private arbitration, citing an agreement Ziober had signed while employed. A district court granted BLB’s motion, and the 9th U.S. Circuit Court of Appeals agreed.
The 9th Circuit judge Mary Murguia said in the decision that the Supreme Court had made clear that “the act of bringing a claim in arbitration allows a plaintiff to vindicate his or her substantive statutory rights to the same extent as filing a lawsuit in federal court.”
That’s not how Ziober sees it. “Arbitration seems to be a way to slip things under the rug,” he said. Zoiber said BLB required him to sign the arbitration agreement in order to keep his job. In a March petition to the Supreme Court, his attorneys wrote that under the Ninth Circuit’s decision protections for civilian soldiers were turned into a “paper tiger.”
The Democrats’ brief highlights that the law allows that service members can file suit free of charge in the “district court for any district in which the private employer” has a place of business, and specifies that it supersedes any law, agreement, or contract “that reduces, limits, or eliminates in any matter any right or benefit provided” by the statute.
Even if the issue were ambiguous, they say, Supreme Court precedents dictate that, when in doubt, pro-veteran statutes should be construed liberally for the benefit of service members like Ziober. “Congress wanted to ensure that veterans could vindicate their rights in the forum of their choice,” the brief says.
“It will harm veterans if the court fails to take the case and overturn it,” Blumenthal said.
Critics of arbitration aren’t the only ones eager for the Court to consider Ziober’s case.
Marshall Babson, an Seyfarth Shaw attorney representing employers and former member of the National Labor Relations Board, said he hopes the justices will grant Ziober’s petition and then rule against him, establishing a fresh precedent in favor of arbitration.
“It’s more efficient, more effective, and has a better result,” said Babson. “I don’t think you need a judge in robes to decide whether Johnny was terminated because he was late 15 times to work or because he’s from Bulgaria.”
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