By Paul H. Tobias Attorney Fellow Clark Taylor

Ending forced arbitration of employment disputes is The Institute’s top public policy priority. Toward that end, The Institute is engaged in a public education campaign to raise awareness about how forced arbitration threatens the role of the courts as a means for workers to vindicate their rights when employers violate the law by denying them access to America’s civil justice system.

Forced arbitration lacks public accountability and transparency, and thus shields employers from responsibility when they break the law. Clark Taylor, The Institute’s Paul H. Tobias Fellow, writes frequently on this issue.

America’s service members should never have to choose between protecting our country and having a civilian job. But that is what Rodney Bodine had to do. Mr. Bodine applied for a sales position at Cook’s Pest Control in Alabama in 2012.

During the interview process, Mr. Bodine informed his supervisor that he was a member of the United States Army Reserve, which required him to participate in training sessions one weekend each month and two full weeks a year. Before officially starting his job, Cook’s required Mr. Bodine to sign a forced arbitration clause.

Immediately after joining Cook’s, Mr. Bodine’s supervisor informed him that employees who are also service members do not “work out very well” at the company, and suggested it would be best if Mr. Bodine ended his military service.

While Mr. Bodine was away at training in early 2014, his supervisor hired another sales person and transferred one of the most profitable sections of Mr. Bodine’s sales territory to the new employee, making it extremely difficult for Mr. Bodine to meet his sales goals. Mr. Bodine’s supervisor continued to pressure him to end his military service, but Mr. Bodine refused to do so.

The situation worsened and, in August of 2014, Mr. Bodine’s supervisor told him that he had “far too many irons in the fire” and that something needed to change. A month later, after learning that Mr. Bodine had received orders to report for annual training, the supervisor fired Mr. Bodine supposedly for his underperforming sales numbers.

To protect service members from discrimination and retaliation because of their military service, Congress passed the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994. As Mr. Bodine’s lawyers have asserted, USERRA, protects “service members and veterans so that they can serve their country, return to their civilian jobs after serving, and remain free of discrimination based on their military status and service.”

The law ensures that people like Mr. Bodine do not have to choose between serving their country and having a fair opportunity to earn a living. An important way in which USERRA protects the workplace rights of service members is its strong anti-waiver provision, which prevents employers from compelling service members to give up certain rights under USERRA.

Despite these legal protections, in addition to denying Mr. Bodine his day in court, the forced arbitration clause shortened the time in which he could file a claim, made him responsible for fees and costs, and limited his right to appeal. Also, unlike like a judge in a public court, the private arbitrator was not required to include factual findings or legal reasoning in the arbitration decision.

After Mr. Bodine filed a lawsuit in court against Cook’s for violating his USERRA rights, Cook’s asked the court to force the case into arbitration. While the court recognized that parts of the Cook’s forced arbitration clause unlawfully limited Mr. Bodine’s USERRA rights and refused to enforce them, it still ordered Mr. Bodine to arbitrate his case. It did so because Cook’s forced arbitration clause included a “severability” provision, which directed the court to remove any illegal terms and force Mr. Bodine into arbitration anyway.

These provisions allow employers to include unlawful requirements in their arbitration clauses without fear that the presence of such terms will allow employees to avoid being forced into arbitration. Mr. Bodine has appealed the court’s ruling to the U.S. Court of Appeals for the Eleventh Circuit.

NELA members Kathryn S. Piscitelli and Peter Romer-Friedman will argue the appeal on behalf of Mr. Bodine this April.