Next month, the Supreme Court will hear Flowers Foods v. Brock and again address Federal Arbitration Act coverage. The case is important in its own right because it will determine whether last-mile drivers are exempt from the FAA — and can avoid forced employment arbitration. (More on that, below.) The case is also important because the AFL-CIO has unearthed statutory evidence showing that the last 25 years of FAA jurisprudence are badly mistaken.
In 2001, the Court ruled in Circuit City v. Adams that the FAA requires courts to enforce mandatory arbitration agreements in employment contracts. The Court construed the FAA’s exemption for contracts involving “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” as applying only to transportation workers — not all workers that, under modern jurisprudence, engage in interstate commerce. In reaching that conclusion, the Court refused to give effect to the statute’s plain text (exempting “any other class of workers engaged in … interstate commerce”) and its history (which shows that Congress crafted the exemption to meet an objection by the Seamen’s Union that the original bill could interfere with collective bargaining agreements or employment contracts). See Circuit City, 532 U.S. 105, 126–27 (2001) (Stevens, J., dissenting).
Since Circuit City, the Court has held the FAA gives employers the right to require their employees to arbitrate individually without class actions or class...
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