The US Supreme Court’s ruling on a century-old statute could take away your rights — we should all be worried. 

BY ARON SOLOMON, OPINION CONTRIBUTOR - 03/06/24

Just last month, the Supreme Court heard oral arguments in the case of Bissonnette v. LePage Bakeries Park St., LLC, a class action to determine whether workers actively engaged in interstate transportation must also be employed by a company in the transportation industry to be exempt from the Federal Arbitration Act. 

Neal Bissonnette and Tyler Wojnarowski drove trucks that delivered Wonder Bread and other baked goods. They sued Flowers Foods in 2019, claiming they were wrongly classified as independent contractors to avoid wage laws. Flowers Foods sought to enforce arbitration, which the courts supported, despite the argument of the drivers that they should be exempt as “transportation workers.” 

The Federal Arbitration Act (FAA), codified at 9 U.S.C. §§ 1-16, is a federal statute that governs the enforcement of arbitration agreements in the United States, particularly in the context of interstate or foreign commerce. In Bissonnette, the court is specifically looking at the FAA’s arbitration exemption for transportation workers.  

Because the FAA is literally a century old, there is an exemption that aims to exclude “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” from mandatory arbitration. As Florida lawyer and Supreme Court watcher Adriana Gonzalez explains, “The issue in front of the Court this week is whether people such as Mr. Bissonnette and the class of workers he leads here fall under the FAA exemption and can therefore avoid arbitration.” 

So, assuming you neither deliver nor produce Wonder Bread, why should you care about this oral argument and the Supreme Court’s eventual decision, which should come down sometime this spring? Because the Second Circuit decision that drivers who delivered baked goods were not covered by Section 1 of the FAA because they were not part of the “transportation industry” makes no sense at all and limits the rights of these workers.  

If you’re new to this case, really let this sink it. The trial court and the Second Circuit ruled against the class of drivers, as Gonzalez points out, “interpreting that since they don’t work in the transportation industry, the FAA’s exemption doesn’t apply.”  

The employers, focusing on the historical context and specific regulatory protections for seamen (yes, actual seamen) and railway workers, assert that the nature of their business (baking) means their drivers are not covered by the exemption.  

They argued using the principle of “ejusdem generis” (in short, “of the same kind”) that the exemption should only apply to those within the same class as seamen and railroad employees. Since they as employers are not in the transportation industry (again, they bake bread, such as Wonder Bread), they contend the exemption doesn’t protect their drivers.  

But it’s obvious why the employers are making this argument — and this is precisely why this case should be on all of our radar.  

By denying the FAA exemption here, the courts are taking rights away from these workers. Every one of us should be seriously concerned that the Second Circuit’s broad interpretation of the FAA limits the ability of American workers to bring their legal and statutory claims to court. 

When we think about the world we live in today, where everything is available to us 24/7, this overbroad interpretation makes zero sense. 

Case in point: I have an Amazon order arriving soon (nothing exciting — hand soap refills and heavy-duty aluminum foil for some winter BBQ), as well as a box coming from FedEx with a new handmade leather Apple watch strap.  

So, according to the trial court and the Second Circuit here, the FedEx driver would be exempt from the Federal Arbitration Act because FedEx is “in the business of transportation” (like the seamen and railway workers of yore) but the Amazon driver would not be exempt because Amazon is not in the transportation business. 

Come on. 

In oral argument, the justices really sought to test the logical and practical elasticity of the exemption. Yet anyone who listened to the oral argument expecting that the justices would ultimately show their hand were deeply disappointed.  

The justices were far too granular, especially Justice Amy Coney Barrett, around the historical nature of the exemption for seamen. While several times the questioning found more of a ground in today’s reality about how massive commerce is and how it’s practically done, the reality was a palpable reticence among the justices to open the FAA exemption too wide.  

So while our common sense might dictate that the Supreme Court should reverse the Second Circuit and hold that Bissonette and the class of workers he represents are exempt from the FAA, at least in this oral argument, the collective minds of the Supreme Court justices never seemed to get there. Whether they do before the summer, when the decision is released, is anyone’s guess.  

A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief strategy officer for Amplify. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.