While USERRA may be comprehensive and quite broad, there is at least one area that courts seem willing to concede can be changed. The 6th Circuit Court of Appeals has recently ruled that employees and employers who agree to arbitrate disputes can include USERRA claims in that arbitration agreement.
Recent case: Timothy Landis worked as an optometrist for Pinnacle Eye Care and signed an employment agreement with an arbitration clause that specified he agreed to “resolve any controversy, dispute or disagreement” about his employment through arbitration.
Landis was called to active duty and served in Afghanistan. Landis later claimed that before he left, he negotiated additional benefits with Pinnacle, including a bonus payment. However, these alleged changes were never put in writing.
Landis returned from duty and claimed that Pinnacle refused to honor the agreement.
He sued under USERRA, claiming the law applied to the kinds of benefits the oral agreement addressed. Therefore, he claimed, he should have received those benefits when he returned to work following his military service.
But the court rejected his claim. It said the arbitration agreement—not a USERRA lawsuit—was the route Landis should have taken to obtain the benefits he sought. The court concluded that, as long as an arbitration agreement allows a service member to get all the benefits he would get if he took a USERRA claim to federal court, it’s valid.
The court also pointed out that the U.S. Supreme Court has consistently upheld arbitration as an alternative to federal court lawsuits and that Congress could have blocked arbitration of USERRA claims if it had wanted to. (Landis v. Pinnacle Eye Care, No. 07-6294, 6th Cir., 2008)
Final note: Make sure the arbitration agreement you use is one that will meet state contract laws. It must provide a meaningful way to resolve all employment related issues, including USERRA ones. Always have experienced counsel review the agreement.
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