WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Flowers Foods v. Brock, a case in which the Court is considering whether the Federal Arbitration Act exempts from arbitration “last-mile” delivery drivers who transport goods between two points in the same state to their final destinations, when the goods were originally shipped from outside the state, Constitutional Accountability Center Senior Appellate Counsel Smita Ghosh issued the following reaction:

Flowers Foods contends that it can use the Federal Arbitration Act to force workers like Mr. Brock into arbitration because they are not, in its view, “engaged in” interstate transportation work, even though those workers are responsible for the transportation of goods in one leg of an interstate journey. History simply does not support this claim, and the Supreme Court should reject it.

Constitutional Accountability Center Legal Fellow Harith Khawaja added this reaction:

Multiple justices pushed on Mr. Brock’s argument that workers responsible for transportation of goods on a purely local leg of an interstate journey fall within the Federal Arbitration Act’s exemption for workers “engaged in interstate commerce,” posing questions about when an “interstate journey” should be understood to begin and end. But as CAC’s amicus brief pointed out, this type of worker would have been understood to be “engaged in interstate commerce” when the FAA was enacted in 1925. At that time, courts, including the Supreme Court, consistently held that purely local movement in the course of a good’s transportation to its “originally intended” destination in another state constituted interstate commerce.

In particular, Justices Sotomayor and Jackson both cited Philadelphia & Reading Railway Co. v. Hancock. As our brief explains, that case held that a trainman whose duties involved transporting coal solely within Philadelphia was engaged in interstate commerce. As Justice Jackson quoted, the “determining circumstance” in that case was “that the shipment was but a step in the transportation of the coal to real and ultimate destinations in another state.”

The text and history of the Federal Arbitration Act thus provide a clear answer to the question presented in this case: Last-mile delivery drivers like Mr. Brock are “engaged in” interstate commerce, and thus cannot be forced to arbitrate legal disputes with their employer.