Flowers Foods’ SCOTUS Return, Pt. 2: Support for 'Last-Mile Drivers' in FAA's Sec. 1 Arb. Exemption
By Sasha Hill
On March 25, the U.S. Supreme Court will hear oral arguments for the arbitration case Flowers Foods Inc. v. Brock, 24-935.
Previously, CPR Speaks highlighted arguments in support of the petitioner filed over two days in December, backing the baked goods company’s request to limit the FAA Sec. 1 arbitration exemption to only apply to its delivery drivers whose responsibilities are directly engaged in interstate commerce. See Sasha Hill, “Flowers Foods’ SCOTUS Return: Amicus Support for Limiting the FAA Sec. 1 Arbitration Exemption,” CPR Speaks (Feb. 13) (available here).
Here, CPR explores the amicus briefs filed in support of the respondent, Angelo Brock, who seeks to expand the Sec. 1 arbitration exemption to include “last-mile” drivers, who deliver goods locally that originated from out-of-state. Briefs backing the driver were filed Jan. 20-22.
This case arises out of a Tenth U.S. Circuit Court of Appeals decision, which held that the Federal Arbitration Act did not apply to an agreement between one of the nation’s largest baked goods company—Flowers Foods makes Wonder Bread—and a last-mile driver who delivers goods locally that originated out-of-state. See Brock v. Flowers Foods Inc., No. 23-1182 (10th Cir. Nov. 12, 2024) (available at https://bit.ly/42QO366).
This is Flowers’ second attempt to limit the breadth of the FAA Sec. 1 arbitration exemption in the nation’s top Court (for more, see below) — the company argues that the Tenth Circuit incorrectly exempted the respondent and other local distributors from arbitration who are not directly involved with interstate commerce.
Original plaintiff Angelo Brock counters that Flowers’ argument incorrectly groups two classes of workers together—last-mile drivers who transport goods on the final leg of their interstate journey to their intended destination, and local rideshare or food delivery workers who transport local goods to local customers.
In January, amicus curiae supporting respondent Flowers filed eight briefs for the Supreme Court to review and consider prior to the argument date. Like the amicus briefs backing the company, the briefs filed in Brock’s support are mostly frequent players in U.S. Supreme Court arbitration cases.
Below is a summary of the arguments made within each brief.
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Public Justice
The first amicus brief was submitted by Public Justice, a national nonprofit legal advocacy organization founded in 1982, and headquartered in Washington, D.C. It states that its mission is to use civil litigation to fight against corporate and governmental misconduct for workers, consumers, and people whose civil rights have been violated, through its work with the Access to Justice Project. It has appeared as both counsel and as amicus in Supreme Court arbitration cases.
The American Association for Justice, also based in Washington and another frequent participant in arbitration litigation at the Supreme Court, is the world’s largest plaintiffs’ trial bar organization. The 80-year-old organization states that it works 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 brief opens with the argument that the transportation-workers exemption should apply to last-mile drivers like Brock, because at the time the FAA was enacted, “interstate commerce” included the intrastate leg of an interstate journey, as shown by the Court’s historical definition of of the FAA Sec. 1 exemption language, “engaged in interstate commerce.”
By focusing on the character of the goods as defined by their intended final destination across state lines—rather than the job responsibilities of the individual drivers—the brief asserts that interstate commerce includes all phases of goods’ continuous journey from start to finish:
In Binderup [v. Pathe Exch. Inc., 263 U.S. 291, 309 (1923) (citation modified)], the Court applied that definition of interstate commerce to last-mile deliveries similar to Mr. Brock, concluding that the distribution of films to movie theaters was “interstate commerce” despite the use of a local agency for the last intrastate leg of the delivery. 263 U.S. at 309. As the Court explained, the fact that “the commodity is consigned to a local agency of the distributors, to be by that agency held until delivery to the lessee in the same state” did not “put an end to the interstate character of the transaction and transform it into one purely intrastate[.]” Id.
Indeed, the brief points out that historically leading up to the FAA’s enactment, the Court had established a definition of “engaged with interstate commerce” under cases involving the Federal Employers’ Liability Act and the Interstate Commerce Act. Public Justice contends that Congress then used this established definition of what it means to be “engaged in interstate commerce” from contemporaneous interpretations of FELA and the ICA to apply to the FAA when it was later enacted in 1925.
The brief’s second major argument is that interpreting the FAA’s Sec. 1 exemption to include last-mile drivers like Brock would align the exemption with existing dispute resolution schemes for railroad and seaman transportation workers. The brief explains that Congress linked the coverage of the 1920 Transportation Act (succeeded six years later by the Railway Labor Act) to the scope of carrier services subject to 1887's Interstate Commerce Act.
In other words, because the Transportation Act’s Title III caselaw also included intrastate transportation workers under the definition of interstate commerce, and because the Railroad Labor Board regularly decided disputes involving transportation workers who did not cross state or foreign borders as part of “interstate commerce, then the FAA Sec. 1 exemption should be interpreted similarly.
That reading would maintain consistency with the historical dispute resolution schemes and Congress’s framework when it adopted this exemption. Thus, the brief asks the Supreme Court to uphold the Tenth Circuit’s decision and include last-mile workers within the meaning of the Section 1 exemption.
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American Federation of Labor and Congress of Industrial Organizations
The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) is the largest voluntary federation of labor unions, consisting of 64 national and international labor organizations that represent 15 million working people. It was established in 1886 and is based in Washington, D.C. It seeks to ensure that arbitration under the FAA does not interfere with other dispute-resolution mechanisms pursuant to other statutes, and is used regularly by its constituents.
The AFL-CIO’s brief first argues that Brock falls within the FAA Section 1 exemption because he delivers baked goods locally as part of a continuous journey of interstate commerce, where parties intend from the outset for those goods to cross state lines.
Citing Gibbons v. Ogden, 22 U.S. 1, 197, 239-40 (1824), the brief asserts that historically the Supreme Court has recognized that intrastate navigation is part of interstate commerce when sufficiently “connected” to an interstate journey. The brief says that this analysis governed cases up until the FAA’s 1925 enactment–an analysis the Court continued to abide by for water and land transportation cases:
Thus, by 1925, this Court had firmly established that local delivery is part of interstate commerce when the local movement of goods is part of a continuous, overall interstate journey (even one that includes intermediate layovers), intended at the outset for destination in another state. The Congress that enacted the FAA surely knew this clear rule when it exempted from FAA coverage agreements of “workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1.
The brief makes the case that Brock’s local delivery of Flowers’ goods satisfies this well-established rule to qualify for the FAA exemption from arbitration, given that his local deliveries are sufficiently connected to the entirety of the goods’ interstate travel.
Moreover, the brief also argues that Railroad Labor Board precedent demonstrates an adherence to the same rule when exercising jurisdiction over local transportation workers that did not cross state lines, but whose deliveries were part of a continuous interstate commerce journey.
Next, the brief makes an ambitious claim that the FAA Sec. 1 exemption was meant originally to extend to all employment contracts—not just to transportation workers—as evidenced by Section 1’s “marginal note,” which describes the FAA’s coverage as “[n]ot applicable to employment contracts of workers,” suggesting a broader scope than today’s transportation worker limitation.
The brief makes the case that the Court’s decisions in cases like Circuit City Stores Inc. v. Adams, 532 U.S. 105 (2001) (available at https://bit.ly/4asdg9U), made the mistake of not considering Section 1’s marginal note—an editorial reference aide printed in the old code formats, Statutes at Large--and narrowing the exemption to only include transportation workers.
Accounting now for the clear evidence that § 1 was originally understood by the public to exempt all employment contracts, this Court, at least, should not compound its earlier error by giving an unduly narrow interpretation to the concept of “transportation worker” that it superimposed on the statute in Circuit City.
While the brief does not ask the Court to overturn the FAA Sec. 1 precedents, it argues that the exemption’s scope should not be further narrowed by adopting restrictive interpretations of who qualifies as “engaged in foreign or interstate commerce.” Instead, it should widen the exemption to include last-mile drivers like Brock so that the exemption rule is more aligned with Congress’ original intent of including all employment contracts under the exemption.
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National Employment Law Project
The National Employment Law Project is a nonprofit headquartered in New York City and founded in 1969. It advocates for the employment and labor rights of low-wage and unemployed workers, and also participates frequently in arbitration-related litigation. In the Flowers Foods arbitration case, NELP’s interest centers on ensuring “that all workers receive the full protection of labor and employment laws and that employers are not rewarded for skirting their obligations.”
First, the brief argues that the FAA’s Sec. 1 exemption from arbitration should be dependent on the actual work typically performed by the employee and not on formalities. NELP states that Flowers’ characterization of Brock operating as a separate independent-contractor business in local transactions is a fiction, arguing instead that local drivers are performing the same deliveries to retail and grocery stores that interstate drivers often make themselves. The last-mile drivers, the brief says, are intermediaries performing the same interstate deliveries as other Flowers employees.
The brief goes on to state that if the Court accepts Flowers’ argument that its drivers solely work locally and are not involved in interstate commerce, drivers like Brock are still exempt from the FAA entirely, because Section 2 would exempt them from the FAA’s scope of authority, as it only exercises jurisdiction over contracts related to interstate commerce.
The Flowers reasoning, NELP asserts, means Brock would be exempt from arbitration altogether.
Next, the brief likens Flowers’ characterization of its business model classifying last-mile drivers like Brock as independent contractors as a misclassification of the actual business model—which does not make the arbitration clauses enforceable. On the contrary, the brief argues these drivers are not independent contractors, but Flowers employees.
In sum, this “business model” that Petitioners tout as meriting special consideration under the FAA is not at all unique. It is a widespread form of independent contractor misclassification—an illegal business practice, endemic in trucking, that denies workers their rights under labor and employment law and deprives state and federal coffers of important funds. Petitioners now suggests [sic] this same misclassification scheme—the scheme that Brock alleges illegally deprived him of overtime pay under federal law—as a reason for this Court to compel workers’ claims into arbitration. But the question of whether Flowers misclassified its commercial truck drivers and violated their employment rights under the Fair Labor Standards Act is the central question that should be answered, on the merits, by a federal court. [Footnote omitted.]
The brief further asserts that the typical work of drivers like Brock is part of a continuous interstate journey and therefore is engaged in “interstate commerce”—similar to the AFL-CIO’s argument. NELP, however, takes this argument a step further by pointing out that Flowers itself has emphasized this fact in prior litigation (see Ash v. Flower Foods, Inc., No. 23-30356 (5th Cir. 2024) (available here), where, the amicus brief notes, “Flowers Foods argued and the Fifth Circuit agreed ‘that the plaintiff-drivers who performed identical work to Brock were engaged in interstate commerce because they transported goods that were on the final leg of a continuous interstate journey’”). The NELP brief notes:
Flowers should not be allowed to claim that its drivers are engaged in interstate commerce when it suits them, and then argue the opposite in related litigation. Indeed, Flowers’ about-face on this issue is simply further evidence that Flowers’ arguments regarding the alleged “local” nature of Brock’s deliveries are not grounded in Brock’s actual work or the reality of the relationship. Rather, Flowers’ arguments are mere window dressing to conceal the true interstate nature of the work that Flowers itself established in Ash.
The brief’s final argument is that Flowers’ last-mile drivers regularly cross state lines, which undercuts the argument that last-mile drivers who do not cross state lines are not engaged in interstate travel.
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Professors of Law and Linguistics
Three law and linguistics professors signed on to an amicus brief in support of affirming the Tenth U.S. Court of Appeal’s decision: Cleo Condoravdi, of Stanford University in Palo Alto, Calif.; Kevin Tobia, from Georgetown University in Washington, and Brandon Waldon, from University of South Carolina in Columbia, S.C. Their counsel of record is Washington, D.C.’s Peter Romer-Friedman, who heads a firm bearing his name.
The brief raises arguments around the typical use of language and applies it to the actual FAA text.
First, the brief argues that the Section 1 exemption for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” refers to entire classes of workers (i.e., railroad employees), rather than particular individuals (i.e., a specific railroad employee who personally crosses state lines to conduct business).
Applying the tenets of linguistic theory, the brief notes that when a predicate is applied to a class generally, it does not require every single individual in that class to perform the identified activity themselves.
Therefore, a railroad employee may or may not cross state lines to conduct business. They are “railroad employees” even if every single person within that group does not personally cross state lines to conduct business.
More directly, the FAA’s Sec. 1 is a “class-based exemption” that covers an individual transportation worker, like Brock, who belongs to a class of transportation workers that generally do cross state lines, even if he does not personally do so himself.
Next, the brief contends that the “seamen” and “railroad employees” are historically “well-established,” intermediate-level categories of workers—which both fall under the main category of transportation worker—but whose employment is characterized by the mode of transportation for moving goods.
Applying this logic, the professors argue that the FAA Sec. 1’s phrase “any other class of workers engaged in . . . commerce” should include similar classes of workers that would fall under the overarching umbrella of “transportation workers” (such as truck drivers like Brock), whose typical role responsibilities normally involves moving goods through interstate travel—even if Brock does not personally cross state lines while operating within his job.
Thus, truck drivers are sufficiently similar enough to apply the class-level meaning of their roles and their frequent involvement in interstate travel without having to decipher each individual truck driver’s specific role responsibilities and delineate which truck drivers are directly crossing state lines, in order to assign exemption status under the FAA.
The brief ends with the argument that truck drivers are a class of workers engaged in interstate commerce, within FAA Sec. 1’s meaning, and is supported by the Court’s precedents. The linguistic professors believe the Court should easily find Brock’s role fits squarely within Section 1’s exemption:
Section 1’s language focuses on the work of the employee, not the nature or industry of the employer. [Bissonnette v. LePage Bakeries Park St. LLC, 601 U.S. 246-247, 254 (2024) (available at https://bit.ly/4avulyl) (in which respondent Flowers Foods unsuccessfully argued that nearly all workers who load or unload goods would be exempt from arbitration by focusing on the transportation function).] What matters is “the actual work that the members of the class, as a whole, typically carry out.” [Southwest Airlines Co. v. Saxon, 596 U.S. 450, 456 (2022) (available at https://bit.ly/4tuG621).] A train driver who only drives in Virginia, a pilot who only flies in Alaska, a seaman who only docks in the Hawaiian islands, and a truck driver who only carries cargo over the “last mile” in Colorado all qualify for the same reason: These transportation workers are each part of a class whose work is engaged in interstate commerce, in the sense relevant to section 1.
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Illinois, California, Colorado, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Rhode Island and Vermont
Illinois, and 13 states, as well as the District of Columbia, submitted an amicus brief in support of the respondent. The brief’s counsel of record is Illinois’ solicitor general, Jane Notz.
The group states that the Tenth Circuit correctly decided that the FAA Sec. 1 arbitration exemption applies to last-mile drivers like Brock, who are responsible for completing the final intrastate portion of goods’ interstate delivery. Their states’ interest lies in ensuring disputes involving transportation workers are resolved in public and transparent proceedings that allow states to monitor and respond to such disputes—rather than private and confidential arbitration meetings.
The brief opens with the argument that the scope of the Section 1 exemption is determined by the nature of the work performed, not the legal formalities established by the employer in contracts.
For instance, in Circuit City Stores . . ., the Court noted that the exemption focuses on “transportation workers and their necessary role in the free flow of goods.” . . . And in Saxon, the Court explained that “[t]he word ‘workers’ directs the interpreter’s attention to ‘the performance of work.’” 596 U.S. at 456 (quoting New Prime [v. Oliveira], 586 U.S. [105, 116 (2019)] (emphasis in original)[(available at https://bit.ly/40CPmE2)]. Indeed, the Court added, to qualify for the exemption, “transportation workers must be actively ‘engaged in transportation’ of . . . goods across borders via the channels of foreign or interstate commerce.” Id. at 458 (quoting Circuit City, 532 U.S. at 121). Accordingly, the Court again relied on the nature of the work, and not any contractual or corporate formalities surrounding it, to decide the availability of the exemption.
The brief asserts that the Court should follow its own precedent and not focus on the existence of the corporate intermediary (Angelo Brock’s independent contracting company, Brock Inc.), but rather, it should focus on the actual work performed by Brock within his role of a truck delivery driver—work over which Flowers retains significant control.
In addition, the brief contends that state laws similarly do not allow the legal relationship—that is, “contractual provisions or corporate formalities”—to control the nature of an employment relationship, providing further evidence that the Court should rest its analysis on the actual work typically done by Brock within the scope of his job.
Next, the brief makes a policy argument for why states have a vested interest in ensuring that Section 1’s exemption covers transportation workers, like Brock.
The brief asserts that states have an interest in maintaining transparent dispute resolution procedures for transportation workers in order to perform their investigatory and enforcement duties more efficiently and get ahead of any escalating disputes that might disrupt their economies. Exemption from arbitration helps further this goal, the states argue.
The brief blasts arbitration rules that “highlight the confidentiality of their services, but also structure their governing rules to allow parties to elect nearly complete opacity in the proceedings.” It criticizes specifically the American Arbitration Association’s commercial arbitration rules and JAMS Inc.’s Comprehensive Arbitration Rules for requiring arbitrators to keep awards and arbitration-related matters confidential.
The brief maintains that states are more capable of exercising investigative and enforcement powers when transportation disputes are resolved in the courts, rather than in private arbitration proceedings conducted under the FAA:
States . . . have an interest in preparing for any possible transportation disruptions, which is made more difficult when disputes are heard in confidential proceedings and resolved by opaque judgments.
The states’ brief supporting Angelo Brock is in direct opposition to five other states that supported Flowers. See summary at the CPR Speaks link above, or, directly, the amicus brief of Missouri, Arkansas, Texas, Montana & Alaska on the U.S. Supreme Court’s docket page at https://bit.ly/4r0RMHm.
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Constitutional Accountability Center
The Constitutional Accountability Center is a nonprofit think tank and public interest law firm that was founded in 2008. Its headquarters are located in Washington, D.C. The organization states that its interest in the case is to protect meaningful access to the courts in accordance with the Constitution and important federal statutes.
The brief starts by examining the FAA Sec. 1 text’s ordinary meaning at the time of enactment. It contends that the residual clause applies to transportation workers, like Brock. (The residual clause ends the Section 1 exemption from arbitration; the exemption applies “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” (emphasis added).)
Relying on Saxon, which held that a worker must play a direct and necessary role in the free flow of goods across borders to escape the scope of Section 1’s authority, the brief argues that Brock was someone who fits within the exemption because his work is directly engaged in the interstate transportation of goods. Even if his specific role is solely intrastate, the brief argues, it is still on the last leg of the continuous interstate journey.
Using legal dictionaries as a guide, the brief defines “interstate commerce” and found that it included local transportation when that transportation formed part of a greater interstate journey.
From the definitions supplied by these dictionaries, the CAC concludes that Brock was definitively engaged in interstate commerce because his last-mile deliveries were part of a “continuous carriage” of goods across state lines.
The Cyclopedic Law Dictionary, for example, defined “interstate commerce” as “[c]ommerce between persons or places in different states,” explaining that a “shipment from one state to another under a contract for continuous carriage is interstate commerce, even as to so much of the journey as is within the limits of a single state.” The Cyclopedic Law Dictionary . . . at 547-48 (emphasis added). Similarly, Black’s Law Dictionary defined “[c]ommerce among the states” as consisting of “all commercial intercourse between the different states,” including “[t]ransportation from one state to another,” and “all [its] component parts.” Black’s Law Dictionary 359 (3d ed. 1933) (emphasis added).
Next, CAC argues that judicial precedent from before and after the FAA’s 1925 enactment establishes that last-mile drivers like Brock are engaged in interstate commerce. Citing precedents decided under the Federal Employers Liability Act and the Interstate Commerce Act, which were enacted before the FAA, the brief notes that to establish liability covered workers did not have to personally cross state lines; it was enough that they interacted with the cars or goods that were part of a continuous interstate journey.
Echoing arguments made by Public Justice, the brief contends that when Congress enacted the FAA, it carried forward the same established understandings and rules governing interstate commerce from the preceding statutes, and incorporated those same principles into the FAA’s scope and coverage.
In other words, the brief uses the historical findings in judicial precedents to inform Congress’s intent when enacting the FAA, and finds that their logic is consistent with the idea that last-mile drivers can be considered part of interstate commerce, though their activities may be within one state.
The brief closes with the argument that Flowers’ interpretation of the Section 1 residual clause is at odds with the clause’s text and history. Flowers emphasizes that Brock’s deliveries take place all in one state. The brief says that the focus is on how his job responsibilities fit into the entire interstate journey of goods, not where Brock personally is located while completing his role of the goods’ interstate journey.
CAC argues that to limit the exemption to workers who physically cross state lines would contradict the textual understanding of the statute, as well as the historical understanding of what constitutes “interstate commerce” at the time of the FAA’s enactment. If the Court applied this historical understanding to Brock’s specific case, the brief argues it should find that Brock was directly engaged in interstate commerce and therefore be exempt from arbitration under the FAA.
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National Academy of Arbitrators
The National Academy of Arbitrators (NAA) is a professional and honorary organization founded in 1947, representing more than 500 members of labor and employment arbitrators in the United States and Canada. Election to the group is for arbitrators who have “widely accepted practices and scholars who have made significant contributions to labor and employment relations.”
The NAA says its interests lie in ensuring standards of integrity and competence for professional arbitrators of workplace disputes, establishing canons of professional ethics, and offering programs promoting arbitration understanding and practice.
The brief’s opening argument is that Supreme Court precedent confirms that Section 1’s residual clause exempts transportation workers engaged in interstate commerce. Moreover, the statute’s text and history, as construed by the Court, support an interpretation that exemption status is determined by the substantive work performed and whether that work constitutes being “engaged in foreign or interstate commerce.” The brief criticizes the petitioner’s stance:
In contrast, Flowers’ reading of the Section 1 exemption would mean that delivery drivers who transport goods for companies with broad distribution networks would not be exempt if, after out-of-state shipments are sent to an in-state depot or warehouse, they are delivered by another driver to an ultimate destination. This cramped interpretation of what interstate commerce means—deeming the last driver to be irrelevant—is at odds not only with this Court’s recent decisions, but also with those of the Court for more than 100 years, before and after passage of the FAA.
The brief also acknowledges that lower courts have had inconsistent rulings on who qualifies as a transportation worker. The NAA argues this inconsistency stems from courts emphasizing different factors. It argues that the inconsistency stems from misapplying terms such as “direct,” “necessary,” “actively engaged,” and “intimately involved” to narrow the residual clause’s scope on when a transportation worker is “engaged in … interstate commerce” and therefore exempt under the statute.
Taking these difficulties into consideration, the brief advocates for an approach that draws on practical employment law and labor law standards to determine whether a transportation worker is engaged in interstate commerce. This includes examining the actual work duties, how the industry functions, and how arbitration fits into the framework of workplace dispute resolution.
The brief emphasizes that the FAA Sec. 1 residual clause’s breadth was established by Circuit City, limiting it to transportation workers rather than all workers. With the breadth settled, the NAA suggests an analytical framework for evaluating the content of the work to qualify for the Section 1 exemption in accordance with the interstate commerce requirement.
Concentrating on laws with settled labor and employment principles governing transportation workers engaged in interstate commerce—such as the Federal Employer Liability Act, the Fair Labor Standards Act, the Railway Labor Act, and the National Labor Relations Act—would prevent confusion and inconsistent rulings from lower courts, the NAA argues. It adds that it also would prevent the FAA from superseding substantive workplace laws. The brief notes,
. . . American law is rich in the detail it provides about who is engaged in transportation work in interstate commerce in a variety of workplace settings. This well-established detail offers a solid foundation to determine the content of the Section 1 exemption, without turning the FAA into a substitute employment law, something the statute was never intended to be.
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American Association of Retired Persons
The American Association of Retired Persons is a nonpartisan, nonprofit organization founded in 1958, with headquarters in Washington, D.C., that advocates for seniors. Its stated interest in Flowers Foods is to advocate on behalf of older adults filing litigation cases and challenging practices that pose a threat to their financial security.
The brief first asserts that trucking is a vital “aging” industry with a disproportionate number of older workers who are seeking labor protections from the courts. It says that a few major carriers dominate a portion of the trucking industry, but it is “largely composed of a vast number of small and medium-size companies" with many using "both employer-employee arrangements and a variety of independent contractor models described as “the heart of the industry.'" [Citation omitted.]
But as demonstrated by the prevalence of trucker lawsuits, a large number of these drivers are under alleged predatory truck-leasing schemes and violations of wage-and-hour laws. “Emerging data reveals alarming news,” the AARP notes in its argument summary, “that practically nobody actually arbitrates workers’ rights disputes.”
The AARP argues that mandatory arbitration is an ineffective substitute for courts. It can pose significant risks to these workers because arbitration often lacks transparency, can impose unfair costs, and limits access to judicial remedies. These outcomes, the brief maintains, are harmful to older workers relying on fair recovery for workplace violations:
In the trucking industry, workers subject to mandatory arbitration often will have to arbitrate quite complex [Fair Labor Standards Act] claims on a solo basis. This requires hiring counsel, an insurmountable barrier in and of itself for many with low income. One study of workers’ rights cases showed federal court cases reaping monetary relief 6.1 times higher than arbitrated awards, and state court cases earning 13.9 times higher. That disparity, in turn, impacts the likelihood that a worker will find a lawyer willing to take the arbitration case on contingency. [Footnotes omitted.]
The brief argues that arbitration’s secrecy, limited procedural protections, and capped remedies can leave workers without meaningful relief. This undermines both individual justice and the enforcement of labor standards that protect older laborers. But “[t]he FAA’s Section 1 exemption gives transportation workers who are forced to sign mandatory arbitration agreements a greater fighting chance to have their day in court.”
Next, AARP argues that Flowers' proposed test for the FAA’s Sec. 1 coverage—which is to narrow the exemption so it only covers workers who personally cross state lines or interact with a vehicle that crosses state lines—is at odds with the settled precedent, would impede interstate commerce, and could have significant consequences for older truck drivers.
Therefore, narrowing the exemption as Flowers requests would weaken worker protections and invite exploitation of older truck drivers. Thus, AARP requests that the Court preserve the full scope of the FAA Sec. 1 transportation-worker exemption by focusing on the nature of the work and its role in interstate commerce, rather than contractual forms.
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The author is the CPR Institute’s 2025-2026 academic year intern from the Howard University School of Law ADR Program, where she is a second-year student in Washington, D.C.
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