59 F.4th 594
2d Cir.2023Background
- Plaintiffs (Bissonnette and others) are commercial drivers who distribute Flowers Foods’ baked goods under Distribution Agreements that require mandatory arbitration. They formed corporate entities, drive DOT-registered trucks, deliver and shelf goods, follow company routes and procedures, and return daily to upload data.
- Plaintiffs sued seeking FLSA and state-law relief and sought to avoid arbitration under FAA §1’s exemption for “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce.”
- The Second Circuit panel originally held the plaintiffs were not §1 “transportation workers” (so the FAA governed and arbitration was enforceable); Judge Pooler dissented.
- After the Supreme Court decided Southwest Airlines Co. v. Saxon (142 S. Ct. 1783 (2022)), the panel granted rehearing, issued an amended opinion that nonetheless treated the plaintiffs as bakery-industry (not transportation-industry) workers, and again held the FAA applied.
- The court denied rehearing en banc. Judges Nathan (joined by Robinson and Pérez) dissented from the denial, arguing the panel’s amended opinion conflicts with Saxon’s worker-focused textual test; Judge Pooler filed a separate dissent urging en banc review; Judge Jacobs filed a statement supporting the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs are §1 "transportation workers" exempt from the FAA | Drivers are transportation workers because their primary duties are driving and delivering goods | Drivers are bakery-industry workers because their employer is a bakery and movement of goods is only a component of price | Panel majority held plaintiffs are not transportation workers; FAA applies (arbitration enforceable) and en banc rehearing denied |
| Proper interpretive test under Saxon: focus on worker duties vs. employer industry | Saxon requires class-definition based on what workers actually do (work-focused test) | Industry context matters; prior Circuit precedent identifies transportation status by industry | Dissenters say panel conflicts with Saxon’s work-focused test; majority retained an industry-centered framework |
| Whether plaintiffs are "engaged in foreign or interstate commerce" under §1 | Plaintiffs’ deliveries are part of interstate flow (goods originate out-of-state; handling suffices) | Plaintiffs work only intrastate and do not personally cross state lines | Panel majority did not resolve the interstate-commerce element; dissent argues Saxon and other circuits would find interstate engagement |
| If FAA §1 does not apply, whether state law compels arbitration | Plaintiffs: if FAA inapplicable, state law may still allow non-enforcement of arbitration provisions | Defendants: state law could still permit arbitration enforcement | Panel majority did not reach/decide the state-law issue because it concluded FAA applied |
Key Cases Cited
- Southwest Airlines Co. v. Saxon, 142 S. Ct. 1783 (2022) (Supreme Court adopts a work-focused test: class membership defined by what workers do and holds workers directly involved in transporting goods across borders fall within §1)
- Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) (Supreme Court: §1’s residual clause exempts transportation workers)
- Bissonnette v. LePage Bakeries Park St., LLC, 49 F.4th 655 (2d Cir. 2022) (panel amended opinion holding plaintiffs are not §1 transportation workers)
- New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019) (Supreme Court: textual limits control over broad policy-driven interpretations such as pro‑arbitration purpose)
- Waithaka v. Amazon.com, Inc., 966 F.3d 10 (1st Cir. 2020) (local delivery drivers deemed transportation workers by virtue of transporting goods in interstate flow)
- Rittmann v. Amazon.com, Inc., 971 F.3d 904 (9th Cir. 2020) (local delivery drivers found §1 transportation workers engaged in interstate commerce)