New Weapons in Service Members’ Battle with Arbitration

Charleston Law Review Vol 18, No 1

Abstract

ver the last nearly two decades, the 5th Circuit has led the charge in allowing employers to force arbitration on servicemembers contesting perceived violations of the Uniformed Services Employment and Reemployment Civil Relief Act (USERRA) rather than allowing them to litigate in federal court, as the act specifically authorizes. The inherent inconsistency and often unfairness of forced arbitration, coupled with servicemembers’ inability to litigate disputes, defeats the act’s purpose. However, recently Congress passed an amendment to the Federal Arbitration Act (FAA) that limits its authority over sexual harassment and assault cases. As the first major curb on the FAA's considerable and constantly growing reach, the amendment is instructive both in Congress' appetite to limit mandatory arbitration in some instances and how to do so.

This article argues that the best way to address the conflict is to: (1) amend the FAA by emulating the Ending Forced Arbitration of Sexual Assault and Harassment Act (EFAA), (2) read USERRA the way it is written to include an express right to bring suit in federal court, or (3) read the FAA to not apply to employment disputes. Currently, a reservist called to active duty could be fired and then subjected to an adjudication forum created by the company that fired her, utilizing facially biased arbitrators and excluding discovery. Even worse, that company's history of termination may never be revealed due to mandatory nondisclosure agreements. This outcome is incorrect for both immediate and long-term reasons, and a solution is finally within arms' reach.