The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the rights of soldiers and reservists who are called to active duty or training and want to return to their jobs once their service is over.
But these rights aren't without limits. USERRA doesn't guarantee that people can resolve their USERRA claims in federal court. If the military member signed an arbitration agreement before deploying, he or she is bound by it.
Remember, however, that arbitration policies must be legally precise to stand up in court. Check with your attorney to make sure your policy meets state law.
Recent case: Michael Garrett worked for Circuit City and was also a member of the Marine Corps reserves. Right before Garrett shipped out for military service in Iraq, Circuit City fired him for alleged work.
Garrett filed a USERRA claim, arguing that the company's reasoning was a ruse to get rid of him before he went on. But Circuit City shot back, saying Garrett couldn't legally sue in court because he, like other Circuit City employees, had signed a companywide agreement to arbitrate employment-related disputes.
The 5th Circuit Court agreed with Circuit City and told Garrett to abide by the arbitration agreement. Nothing in USERRA prevents an employer from using arbitration to resolve rights found in that law. The arbitrator can order every remedy a federal judge can. (Garrett v. Circuit City Stores, No. 04-11360, 5th Cir., 2006)
- Whine not? Tell chronic complainer to just move on when latest allegation proves false
- Employee must address ADA, FMLA thresholds up front
- Counter retaliation claims by accurately documenting every employee complaint
- Make note if employee actually requests arbitration
- Transfer—without penalty—won't make a retaliation suit