Justices to consider arbitration exemption for “last-mile” drivers

Flowers Foods v. Brock brings the justices another in a lengthening line of cases about the exemptions from the Federal Arbitration Act. The specific question is whether “last-mile” drivers – drivers who deliver from a regional warehouse to the store – are exempt from the arbitration requirements of that statute.

The Supreme Court has decided numerous cases under the FAA in the last few decades, the great majority of them reversing lower court decisions that in the justices’ view gave inadequate breadth to the FAA’s command that courts faithfully enforce pre-dispute arbitration agreements. In recent years, though, an ancillary provision of that statute has brought the justices several cases on a different question – the breadth of the statute’s exemption for “transportation workers” who are “engaged in foreign or interstate commerce.” The exemption is important because those workers cannot so readily be forced into arbitration when they have disputes with their employers.

In this particular case, Angelo Brock is a driver who delivers baked goods for Flowers Foods, the country’s second-largest seller of packaged bakery goods in the United States (with products ranging from Wonder Bread to Dave’s Killer Bread). The baked goods are prepared at locations around the United States and then shipped to a local warehouse (in this instance, in Colorado), where logistics companies (like Brock’s employer) pick up the goods and deliver them locally. The key problem is that the goods are shipped across state lines, but Brock works to deliver them exclusively within a single state. The question for the justices is thus whether his wholly intra-state employment on one leg of an inter-state transaction is enough to make him a worker “engaged in … interstate commerce.”

Flowers Foods argues that the key question under the FAA is the work that the employees perform, not the commerce to which it relates. They point to the text, which refers to contracts of “employment” and workers who are “engaged in” interstate commerce. Because Brock’s work has no direct or active role in any cross-border transportation, he should not, the employer contends, be exempt from the FAA. Brock, by contrast, emphasizes the nature of the shipment. Since Brock clearly is a transportation worker, and given all of the shipments on which he works travel in interstate commerce, he argues he is entitled to the exemption.

Much of Brock’s presentation is historical, pointing to the Federal Employers’ Liability Act, which had established that last-mile workers (like himself) were engaged in interstate commerce long before Congress adopted the FAA. Flowers Foods, for its part, argues that practice under the FELA is irrelevant because the language of the statute (dealing with rail carriers) is materially different from the language of the FAA.

I see this as a liminal case. The justices have not previously had a case with a worker who worked on interstate shipments but was not involved in any way with the interstate portion of the shipment. I don’t think it would be difficult to write an opinion coming out either way, and I rather doubt that most of the justices will find the historical sources compelling. So I’ll be waiting for the argument to get a sense of which way they are leaning.