The FAA Exempts Transportation Workers Engaged In Interstate Commerce From Arbitration -- What About The Amazon Delivery Person Who Brings The Package To Your Door?
Many of us trying to avoid shopping during the pandemic have become familiar with the delivery of an Amazon package to our door. The delivery workers often drive their own vans or bicycles, go to the Amazon warehouse, pick up items, and complete the "last mile" of delivery. The items that we purchase from Amazon often come from out of state. However, the delivery workers usually make their deliveries locally, working in our state. So: are those delivery workers exempt from the Federal Arbitration Act's "9 U.S.C. section 1, et seq., enforcement provisions because they are transportation workers engaged in interstate commerce." That's the primary issue in Rittmann v. Amazon, No. 19-35381 (9th Cir. 8/19/20). The majority, in an opinion authored by Judge Milan D. Smith, Jr., says yes, the exemption applies. Judge Daniel A. Bress dissenting, says no.
While Amazon has shipped products using FedEx and UPS, "[r]ecently it has supplemented those delivery services by contracting with local delivery providers through its AmFlex program, which is available in certain metropolitan areas in the United States." The AmFlex program is run by Amazon Logistics, Inc., an Amazon subsidiary. "AmFlex drivers' transportation of goods wholly within a state are still a part of a continuous interstate transportation," explains Judge Milan Smith, Jr., "and those drivers are engaged in interstate commerce for section 1's purposes."
Judge Bress disagrees, arguing that the driver who works completely in state is not engaged in interstate commerce. The majority counters that it does not write on a "blank slate", and that drivers who are part of "continuous interstate transportation" are involved in interstate commerce, even when travelling intrastate. Judge Bress also argues that the majority rule will be difficult to apply in other cases and lead to odd results: the driver who has a Doordash sticker on the car and delivers food, and is also part of the AmFlex program, will be classified differently depending on whether the driver is delivering food for Doordash or making deliveries for Amazon. It seems like that would be an expected result if the driver works for Doordash, and Doordash delivers intrastate, and the AmFlex worker works for the subsidiary of a national company, and participates in the flow of continuous interstate transportation. More work for judges and attorneys, perhaps, as evidence will need to be presented and judges will need to decide early on in a lawsuit if transportation workers are participating in continuous interstate transportation and therefore exempt from arbitration. C'est la vie -- for a federal judge, at least?
COMMENT: For Amazon and the AmFlex workers, the stakes are high. The workers' underlying lawsuit contends that AmFlex misclassifies the workers as independent contractors rather than as employees. Presumably the plaintiffs' attorneys believe that a court will provide a convenient and viable forum for a class action (rather than divide-and-conquer one-on-one dispute resolution in arbitration) and a more sympathetic setting if the case goes to a jury.
Legal commentators have noted efforts, which they ascribe to conservatives, to limit access to the federal courthouse by the use of standing doctrine, and enforcement of arbitration agreements. See, e.g., Erwin Chemerinsky, Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable (2017). In the Rittmann case, however, all three judges were Republicans appointed by a Republican President -- Judge Milan D. Smith, Jr., and Judge N. Randy Smith, appointed by George W. Bush, and Judge Daniel A. Bress appointed by Donald Trump. Though statutory rights may be slightly less of a battle ground than constitutional rights, worker rights in the courts are fought over in many pitched battles. Given the dissent by Judge Bress, one may wonder: what would SCOTUS do? We won't speculate.
UPDATE: For an explanation of why the 9 USC section 1 arbitration exemption exists for transportation employees, see my September 2, 2020 post.
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