Justices debate arbitration exemption for “last-mile” drivers

Yesterday brought the justices another of the term’s cases about the federal statute forcing the enforcement of arbitration agreements. The issue in this one – Flowers Foods, Inc. v. Brock – is the scope of an exemption in the Federal Arbitration Act for interstate transportation workers. Specifically, the question is whether that exemption reaches “last-mile” drivers who don’t themselves cross state lines, even though the goods they are delivering are on an interstate journey. As far as you could tell from the argument, the justices seem inclined to give those workers the benefit of the exemption – that is, they may choose to go to court instead of being forced to arbitrate with their employers.

The argument from Traci Lovitt (on behalf of the employer) is that these workers shouldn’t get the interstate exemption because they never cross state lines and aren’t even involved with vehicles that do cross state lines. But from the earliest moment of the argument certain justices coalesced on the idea that the interstate movement of the goods themselves was the key to the case. As Justice Sonia Sotomayor put it early on, the court has decided “a slew of cases … about people who don’t cross state lines” and still count as interstate workers.

The justices quickly settled on a hypothetical about a series of drivers, only one of whom drives the vehicle across state lines. For Justices Ketanji Brown Jackson and Samuel Alito, at least, it seemed ludicrous that the worker who “drives one minute across an interstate border” is an interstate worker but the workers that precede and follow that driver on ten-hour shifts delivering the same cargo down the interstate are not. As Justice Elena Kagan put it, “practically speaking, … [if] the manufacturer of bread needs to get it to all the local markets that sell bread, … everybody who’s involved in making the goods [get there] ought to fall into the same category.”

Finding a majority that excludes Alito, Jackson, and Kagan may be a hard task, and nothing about the argument suggested that the employer will pull that off here. Perhaps the clearest sign of the employer’s difficulty was that almost the entire argument of Jennifer Bennett (representing the employee) was devoted to various hypotheticals – clearly not raised by this case – about shipments directly to consumers, among varying tiers of wholesalers, and the like. Alito, for example, asked about “the oranges that are delivered by the Uber Eats guy in Colorado” – whether that is part of the same interstate transportation that brought the oranges to Colorado. It thus appeared – again, in a bad sign for the employer – the justices were focused on seeing what issues they needed to avoid in their explanation of why this particular worker is entitled to protection.

As always in these arbitration cases you can never be sure until the decision comes down, but this seemed one where a majority of the justices’ minds are made up in the employee’s favor.