Arbitration, Ready to Argue: Amicus Views on Overturning Bissonette at the Supreme Court

The U.S. Supreme Court will hear oral arguments for Bissonnette v. LePage Bakeries Park St. LLC, No. 23-51, on Feb. 20.

The main issue is whether a class of workers that is engaged in interstate transportation must also be employed by a company in the transportation industry to be exempt from the Federal Arbitration Act. FAA Sec. 1 exempts from coverage “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1.

There is a circuit split on the point. The Second U.S. Circuit Court of Appeals in Bissonnette concluded that the plaintiffs—petitioners in the Supreme Court--were not exempt because they were in the bakery industry, not a transportation industry.

Because the company’s revenue was based on sales of baked goods, the appellate court concluded that the FAA exemption did not apply. For more background on the case, see Jonathan Baccay, “The Supreme Court Will Address a Circuit Split on a Federal Arbitration Act Exemption” CPR Speaks (Sep. 29) (available here).

As the oral arguments approach, amicus briefs backing petitioners Neil Bissonnette and Tyler Wojnarowski have been submitted to the nation’s top Court. Bissonnette and Wojnarowski categorize themselves as commercial truck drivers tasked with transporting baked goods and snack foods from a centralized warehouse to retail stores across Connecticut.

Below are summaries of the amicus parties supporting the petitioner-truck drivers and their arguments.  The briefs can be found on the Supreme Court’s docket page at the link above.  (The respondent-bakery company’s amicus briefs will be summarized and posted on CPR Speaks soon ahead of the argument.)

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The Constitutional Accountability Center (CAC) is a Washington, D.C., think tank and public interest law firm “dedicated to fulfilling the inherently progressive promise of the Constitution’s text, history and values.” The CAC says that it has “a strong interest in protecting meaningful access to the courts, in accordance with the text and history of the Constitution and important federal statutes, and therefore has an interest in this case.”

Addressing whether workers must be employed in the transportation industry to be exempted from the FAA, the CAC reasons that through the “ejusdem generis canon,” historical context, and Supreme Court precedent, any worker engaged in interstate commerce should be exempt, not just those in the transportation industry.

“Ejusdem generis” is a statutory construction principle that the brief defines as “when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration”--meaning the “other workers” reference in the FAA Sec. 1 residual clause should be defined similar to the earlier use of “seamen” and “railroad employees.” But the brief argues that the Second Circuit’s reading a transportation requirement into the residual, “other workers” clause was incorrect.

CAC argues that the Court should reject the Second Circuit’s holding because “the transportation ‘industry’ requirement that the court below imposed on the [FAA Sec. 1] residual clause cannot be justified by the chief sources this Court consults to decipher the original meaning of statutes.” CAC references Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) and Southwest Airlines Co. v. Saxon, 596 U.S. 450, 458 (2022), two Supreme Court cases that include all transportation workers in the FAA Sec. 1 exemption and, the CAC says, contradict the Second Circuit’s holding in Bissonnette.

The CAC brief is available on the U.S. Supreme Court website here.

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The National Employment Law Project (NELP) is a New York nonprofit organization with more than 50 years of experience advocating for the employment and labor rights of low-wage and unemployed workers. The National Employment Lawyers Association, or NELA, based in Concord, Calif., is the nation’s largest employee-side bar association. NELA says it has a particular interest in ensuring that workers are correctly classified under the Federal Arbitration Act and other relevant employment statutes because NELA has "unique perspective on how principles announced by courts in employment cases actually play out on the ground.”

NELP and NELA wrote their amicus brief in tandem, arguing that the Second Circuit misclassified Bissonnette and Wojnarowski as non-transportation workers. The brief states that respondent Flowers Foods’ business model “does not render its commercial truck drivers somehow not ‘transportation workers,’ and does not make its arbitration clauses enforceable.”

NELP and NELA focus on that classification, a recurring point in the groups’ advocacy.  They  describe the respondents’ business model as “just a common form of independent contractor misclassification” used by many corporations “whose illegality is the basis of the workers’ original claims for unpaid wages in this case.”

The amici target four basic points: First, the Supreme Court should look to the actual work these commercial truck drivers typically perform to assess whether they are exempt transportation workers. Second, Petitioners’ work “shows clearly that they were ‘transportation workers’ actively and primarily engaged in the transportation of goods.”

Third, the brief asks the Court to “ignore Respondents’ repeated invocation that it has created some sort of unique business model that it contends merits special treatment under the FAA.” NELP and NELA state that the “’business model’ is neither unique nor deserving of a special look.”

The brief continues: “It is a form of independent contractor misclassification—the very subject of the underlying action in this case—designed to prevent workers like Mr. Bissonnette from vindicating his rights under labor and employment law.”

Fourth, the Second Circuit’s requirement that workers must show they are employed in the transportation industry benefits companies with “arbitrage opportunities” and is contrary to the FAA. “Employers should not be able to define for themselves whether their workers are outside the reach of the FAA,” the groups contend.

The NELP/NELA brief is available on the U.S. Supreme Court website here.

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Public Justice, like NELA a frequent participant in Supreme Court arbitration cases on the employee and consumer sides, is a Washington, D.C., nonprofit legal advocacy organization focusing on fighting corporate and governmental misconduct. The organization filed its amicus brief “because it has a continued interest in ensuring that the exemption in § 1 of the FAA is properly interpreted in accordance with its text and the historical and statutory context in which the statute was enacted.”

Public Justice is concerned with the “last-mile transportation workers”—not the exact question before the Court, but related to whether the job tasks were connected to interstate commerce in the transportation of goods to qualify for the Sec. 1 exemption.

The brief cited the FAA interpretation in Southwest Airlines, which stated that “Section 1’s transportation-worker exemption must be interpreted in accordance with the text’s meaning at the time the law was enacted.”

The amicus brief goes on to explain that “when the FAA was enacted in 1925, a ‘class of workers engaged in commerce’ included anyone engaged in foreign or interstate transportation, including those who transported goods or passengers within a single state, so long as those goods or passengers came from or were headed to another state.” Even before the FAA’s enactment, workers whose jobs were “’so closely related to’ interstate transportation ‘as to be practically a part of it’ were also ‘engaged in interstate commerce.’” Baltimore & O.S.W.R. Co. v. Burtch, 263 U.S. 540, 542-43 (1924).

Public Justice argues that Petitioners were involved in interstate commerce, stating, “the fact that some of the petitioners may spend time operating the business that transports Flowers’ goods from the regional warehouse to stores throughout the state— the last leg of the goods’ interstate journey—does not change the fact that those petitioners are engaged interstate commerce.”

Public Justice also highlights that the respondents have not disputed that most of petitioners’ work hours were spent transporting goods that originated out of state. Because Petitioners were involved in interstate commerce based on the nature of their work, Public Justice suggests Court precedent should exempt them from the FAA.

The Public Justice brief is available on the U.S. Supreme Court website here.

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The National Academy of Arbitrators, a national nonprofit based in Cortlandt, N.Y., describes its interest in the case as noting that it “was founded in 1947 to ensure standards of integrity and competence for professional arbitrators of workplace disputes, including establishing canons of professional ethics, and offering programs promoting the understanding and practice of arbitration. As historians of the Academy observe, it has been ‘a primary force in shaping American labor arbitration.’”

The NAA argument is that the Second Circuit’s holding, if affirmed, would narrow the FAA exemption clause, which would go against previous Supreme Court decisions and FAA legislative history.

The brief states, “the residual clause applies to those who do the work, not for whom the work is done.” This means that if workers participate in transportation work, they are exempt from the FAA regardless of their employer’s industry. Because the petitioners’ work constituted transportation work within the FAA’s meaning, it does not matter that their employer was not in the transportation industry.

The NAA proposes a roadmap to prevent the FAA from being applied as a “type of employment statute.” This roadmap would instead insist “reliance on substantive employment and labor laws that have long determined classes of workers within the interstate nature of the American workplace, including transportation workers.” The proposal “illuminates the content of the transportation worker exemption by reference to relevant statutory sources and practices that already identify transportation work.” (Emphasis in the brief.) The roadmap, the brief says, assists with the consistent application of both Circuit City and Saxon, the Supreme Court cases on FAA Sec. 1.

The National Academy of Arbitrators brief is available on the U.S. Supreme Court website here.

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A number of states combined to file an amicus brief on behalf of the petitioners. Illinois, California, Colorado, District of Columbia, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington filed an amicus brief in the case because states “have an interest in ensuring that disputes involving transportation workers are resolved in public and transparent proceedings that allow States to monitor such disputes and respond as necessary, as opposed to private and confidential arbitration proceedings.”

The states’ brief explains its view on the narrowing of the FAA Sec. 1 exemption by the Second Circuit’s interpretation: “The lower court here would apply the exemption only in cases where the company employing the workers at issue is part of the ‘transportation industry.’” This narrowing, the states’ brief suggests, would require courts to assess the entity for purposes of the workers’ employer under the Section 1 exemption “and whether that entity belongs to the so-called ‘transportation industry.’”

Assessing the employer, the brief states, would slow the judicial process and harm the efficiency of resolving disputes. “[E]fficient access to information involving the transportation of goods within state borders is critical to ensuring States are able to monitor the smooth operation of commerce within their borders and ensure safe and lawful workplace conditions for their residents,” according to the brief.

Alongside efficiency, the states are interested in allowing transportation workers to resolve complaints in public proceedings for ease of access to information. If not protected by the FAA exemption, the proceedings will not be public, harming the states’ ability to enforce “difficult and time-consuming labor and employment factual disputes,” by requiring an inquiry into the employer rather than worker--while Congress “directed that arbitrability questions be resolved quickly so that the parties may turn to the merits.”

The amici states’ brief is available on the U.S. Supreme Court website here.

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The American Association for Justice is a national, voluntary bar association based in Washington, D.C., established in 1946 to strengthen the civil justice system, preserve the right to trial by jury, and protect access to the courts for those who have been wrongfully injured. The largest plaintiffs’  trial bar is formerly known as the Association of Trial Lawyers of America.

The AAJ says it is interested in this case because it is concerned that the overly broad construction of the Federal Arbitration Act advanced by the Second Circuit undermines the rights of U.S. workers to pursue their statutory and common-law claims in a judicial forum.

The AAJ makes a legislative history argument in support of its position. First, the amicus brief provides a history of the FAA, including the fact that in the 1920s, the International Seamen’s Union of America and the American Federation of Labor immediately objected that the FAA proposal would apply to workers, and the American Bar Association drafting committee responded  with language to alleviate these concerns.

The AAJ used legislative history to criticize the Court’s Circuit City holding determining that only transportation workers were exempt from the FAA. Without the Circuit City transportation worker requirement, the FAA would exempt workers beyond those involved in transportation.

The AAJ then claimed that even within the context of Circuit City, the petitioners would still be exempt from the FAA because the nearly century-old law applies to the actual work performed, rather than for whom it is performed—the work, not the industry, citing Southwest Airlines.

Because the petitioners transported goods in interstate commerce, the brief explains, they are “transportation workers” even though their employers are not in the transportation industry. The AAJ states that no legislative history or Supreme Court precedent would suggest that the petitioners were bakery workers rather than transportation workers excluding them from the FAA Sec. 1 exemption, so the Supreme Court should reverse the Second Circuit’s holding.

The American Association for Justice brief is available on the U.S. Supreme Court website here.

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Please bookmark CPR Speaks and watch for a follow-up report on the Bissonnette respondents' friend of the Court filings, as well as the petitioners' and respondents' amicus briefs highlights for the Feb. 28 arbitration arguments in Coinbase v. Suski, which is discussed on CPR Speaks here and here. More background on Bissonnette can be found on CPR Speaks here and here. 

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The author, a second-year student at the Howard University School of Law in Washington, D.C., is a full-year CPR intern as part of CPR’s consortium program with Howard Law’s ADR program.

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