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Navy Reservist Thanks Bipartisan Congressional Group for Urging the U.S. Supreme Court to Hear His Case and Hold That Veterans Can’t Be Forced to Arbitrate Their Employment Claims

Outten & Golden LLP

20 Members of Congress file amici curiae brief in support of veterans’ employment rights

Today, a bipartisan group of 20 U.S. Senators and Representatives filed an amici curiae brief with the U.S. Supreme Court asking it to hear the case of Lieutenant Kevin Ziober, a Navy Reservist who was fired by his civilian employer the day before his deployment to Afghanistan. When Ziober sought to enforce his veterans’ employment rights in federal court, a judge held that Ziober must arbitrate his employment claims due to an arbitration agreement Ziober was forced to sign as a condition of employment with BLB Resources, Inc., a federal contractor.  (The list of 20 members of Congress is provided below).  

In the amici brief, the members of Congress urged the Supreme Court to reaffirm a longstanding principle that all veterans’ rights laws must be interpreted for the benefit of veterans and to recognize Congress’ intent to protect veterans and servicemembers against waiving any of their rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA), including their procedural enforcement rights like the right to file an action in federal court.

Lieutenant Kevin Ziober said, “I thank and salute this bipartisan group of Senators and Representatives.  They are taking a stand for me and millions of other veterans whose rights are at stake in this case.  I am thrilled to see that so many Democrats and Republicans have come together to protect the rights of veterans.  No veteran should ever have to give up his or her rights or benefits under federal law simply to secure a job or make ends meet.” 

Ziober is represented by several lawyers who often represent veterans and servicemembers in USERRA actions, including: Peter Romer-Friedman and P. David Lopez of Outten & Golden LLP’s Washington, DC office; R. Joseph Barton of Block & Leviton LLP’s Washington, DC office; Thomas G. Jarrard of the Law Office of Thomas Jarrard in Spokane, WA; and Kathryn Piscitelli of Orlando, FL, who is the co-author of The USERRA Manual, a leading treatise on USERRA. 

On April 24, 2017, the Supreme Court docketed Ziober’s petition for certiorari. In June 2017, the Supreme Court will likely decide whether to hear Ziober’s case.  In his certiorari petition, Ziober argues that the plain language of USERRA, 38 U.S.C. § 4302(b), and the law’s legislative history make clear that Congress intended to protect all USERRA rights from waiver and, in particular, prohibit employment agreements that require veterans to arbitrate their USERRA claims. 

In October 2016, the U.S. Court of Appeals for the Ninth Circuit held that Ziober must arbitrate his USERRA claims, deepening a split among the courts of appeals over whether veterans can waive their procedural rights under USERRA. The Ninth Circuit also disregarded prior Supreme Court cases that held that the entire veterans’ reemployment law and other veterans’ rights statutes must be interpreted liberally to benefit veterans, including on issues of procedural rights.

The underlying facts of Ziober’s case are troubling. Ziober’s employer threw him an office-wide party on his last day of work before his deployment to honor his service—with an American flag cake, balloons, and camouflage netting.  Several hours later, as Ziober was about to leave for his deployment, BLB called Ziober into the HR office and summarily fired Ziober. Thus, Ziober left for his deployment to Afghanistan knowing that he would have no civilian job to return to—even though USERRA requires civilian employers to reemploy servicemembers after their military service ends. 

 Contact: Kevin Ziober; Ziober’s counsel, Peter Romer-Friedman can arrange interviews with Ziober; 718-938-6132 or 202-847-4402 or prf@outtengolden.com

APPENDIX: LIST OF AMICI CURIAE

Amici include the following members of Congress:

  • Senator Richard Blumenthal (Connecticut)
  • Senator Sherrod Brown (Ohio)
  • Representative Matthew Cartwright (Pennsylvania)
  • Representative David N. Cicilline (Rhode Island)
  • Representative John Conyers, Jr. (Michigan)
  • Representative Ted Deutch (Florida)
  • Senator Al Franken (Minnesota)
  • Representative Tulsi Gabbard (Hawaii)
  • Senator Mazie K. Hirono (Hawaii)
  • Representative Pramila Jayapal (Washington)
  • Representative Henry C. “Hank” Johnson, Jr. (Georgia)
  • Representative Walter B. Jones, Jr. (North Carolina)
  • Senator Patty Murray (Washington)
  • Representative Jerrold Nadler (New York)
  • Representative Jamie Raskin (Maryland)
  • Representative Bradley Scott Schneider (Illinois)
  • Representative Jackie Walorski (Indiana)
  • Representative Timothy J. Walz (Minnesota)
  • Senator Sheldon Whitehouse (Rhode Island)
  • Representative Joe Wilson (South Carolina)