While the legal issue in front of the U.S. Supreme Court in the Flowers Foods case is whether a local delivery driver is engaged in interstate commerce, even if the worker’s vehicle never crosses state lines, the day-to-day legacy of the dispute is more likely to be an employee relations question: arbitration or litigation?
That point was driven home further late last week when lawyers for Angelo Brock, the owner of a final mile delivery company that services the baker of such foods as Tastykakes and Wonder Bread, made their arguments in a brief filed with the court. Flowers Foods filed its brief in December, backed by several amicus briefs including one from Amazon (NASDAQ: AMZN).
The legal question remains the same: can a worker who completes all of his or her tasks within the confines of a state be considered an interstate worker because they are at the tail end of an interstate process?
“Interstate commerce is not merely the crossing of a state line,” Brock’s attorneys wrote. “It is the trade and traffic between the citizens of the different states of this country.”
No date has been set yet for oral arguments in the case. A full docket of can be found here.
How the court defines a last-mile worker’s role in an interstate supply chain is likely to have a practical impact in transportation long after the Court hands down its decision. The nine justices’ ruling will help determine whether a delivery driver taking action against an employer will need to pursue those efforts through a federal arbitration process–a venue generally desired by management–or whether it can be taken into the court system.
The Brock case is before the Supreme Court because Flowers Foods (NYSE: FLO) lost a lower court case and then a Tenth Circuit appeal in which it was determined that Brock was engaged in interstate commerce, even though all his company’s work takes place in Colorado.
The Federal Arbitration Act (FAA), which mostly pushes disputes toward an arbitration solution and away from the courts, has an exemption for certain classes of transportation workers. It specifically mentions “seamen” and “railroad employees.” But it also says the exemption applies to “any other class of workers engaged in foreign or interstate commerce.”
Interpretation of what Congress meant in 1925 when it passed the FAA is the issue before the court, and specifically whether final-mile drivers are in the law’s category of interstate workers. If so, it should be easier for an employee to land in a courtroom and not an arbitration process.
Four circuit split
The Supreme Court is hearing the case presumably because the Tenth Circuit decision is part of what Ella Klahr Bunnell, now a law clerk in the Ninth Circuit, said is a four-way split among the circuits defining whether a worker who never crosses state lines could still be considered involved in interstate commerce. She made that observation in a 2024 article in the Illinois Law Review.
Brock sought to pursue a legal battle with Flowers Foods primarily over whether he was an independent contractor (which Flowers Foods argued) or effectively an employee. But that issue is not before the Supreme Court.
Brock’s choice of venue for his complaint was the legal system; Flowers Foods argued that there was a clause in its contract with Brock that required arbitration, which employers inevitably prefer to a lawsuit.
When the Court granted certiorari to Flowers Foods, the transportation-focused Scopelitis law firm summed up the “other” issue in beyond whether a last mile driver can be considered an interstate worker.
“The Supreme Court’s decision is likely to impact transportation providers that use arbitration to resolve disputes with their drivers (whether employees or independent contractors),” the law firm wrote in an email commentary on the case. “Where the FAA applies, businesses benefit from more predictability with respect to the enforceability of key terms in arbitration agreements, including class waivers. That said, even if a given worker is exempt under the FAA, businesses may still pursue arbitration under state arbitration law.”
Why the exemption anyway?
The Brock brief has an extensive recap of the reasoning and motivation behind the passage of the FAA in 1925 in making its case that last-mile delivery drivers should be considered part of the exemption.
Citing language in earlier legal precedents involving the FAA, Brock’s brief said the FAA “governs ‘a wide range of written arbitration agreements,’ including those requiring arbitration of employment disputes.” Further quoting precedent, the Brock brief says the Supreme Court “has found it ‘beyond dispute’ that ‘the FAA was designed to promote arbitration’ and ‘embodies a national policy favoring arbitration.’”
But it also includes that transportation carve-out, and that is what is before the court.
In her law review article, Bunnell spelled out what’s at stake from the perspective of drivers.
Final-mile drivers “are indiscriminately subjected to individual forced arbitration clauses,” Bunnell wrote. “Yet, drivers’ claims are uniquely ill-suited to individual arbitration due to their low individual monetary value and identical theories of harm.”
Driver efforts to fight arbitration and push a dispute into the legal system–where there is always the prospect of a big payout–are “typically to no avail,” she wrote. The possibility of securing a large financial award in the court system can come from aggregating claims into a class-action lawsuit, which is possible but difficult in arbitration.
Bunnell said the FAA’s exemption, which she referred to as the “transportation workers’ exemption…may offer them some relief.”
In its brief, Brock’s attorneys address the question: why is there a transportation carve-out?
Congress might have written that exemption, Brock’s attorneys say, “at least in part, to avoid disrupting other federal dispute-resolution schemes that existed in 1925. At that time, seamen on intrastate voyages in intrastate waters and railroad employees who worked on local lines were typically excluded from those schemes.”
Do definitions of a century ago translate to today?
Brock’s attorneys argue throughout their brief that modernizing the definition of “seamen” and “railroad employees” to 2025 would include last-mile delivery drivers. Quoting the Tenth Circuit decision, the brief said Brock’s “intrastate delivery route forms the last leg of the products’ continuous interstate” journey from Flowers’ manufacturing plants to its retail-store customers.” What railway workers and seamen were doing in 1925 was similar, according to the brief’s argument.
Brock’s brief contrasts today’s last mile workers with restaurant deliveries, “where goods…were not themselves in interstate transportation (and) the workers who delivered them were not engaged in interstate transportation.”
Bunnell, in her law review article, summed up the argument.
“Exploring the contemporary meanings of ‘seamen’ and ‘railroad employees,’ the Court would find that, at the time of the FAA’s passage, any person working on a vehicle transporting goods or passengers in foreign or interstate commerce qualified for the exemption’s protections,” she wrote.
But Bunnell also notes that the phrase “any other class of workers engaged in foreign or interstate commerce” has no other “guidance” on what it means.
Flowers Foods’ argument boils down to the issue of what the drivers do on a day-to-day basis. In its brief filed in early December, it said the exemption should apply to workers who “must be part of the interstate transportation of goods.”
Flowers Foods in its December brief criticized the decision of the Tenth Circuit. The baker said under that ruling, “workers who perform exactly the same work—delivering goods intrastate—may or may not be exempt depending on the transaction prompting the goods’ delivery.”
The specificity of the exemption–railway workers and seamen and the general “other class of workers”–could have been written in such a way that it would have focused on “goods or transactions” rather than the worker’s work in defining who is covered. But (Congress) chose narrower language. That variance cannot be disregarded.”
The opposite view in the Brock brief is that “goods…remain in interstate transportation—in interstate commerce—until they reach that destination, even during intrastate portions of the journey.”
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