Supreme Court Should Adopt Practical, Real-World View of FAA “Transportation Workers” Exemption
Section 2 of the Federal Arbitration Act (“FAA”) mandates that arbitration agreements “shall be valid, irrevocable, and enforceable.” 9 U.S.C. § 2. Section 1 of the FAA, however, exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1 (emphasis added). The Supreme Court held in Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246, 256 (2024), that a worker “need not work in the transportation industry to fall within the exemption.” The Court expressly reserved, however, the question of whether workers who “do not drive across state lines,” such as workers who locally deliver out-of-state goods, fall within the § 1 exemption. Id. at 256 n.2.
In October 2025 the Supreme Court granted certiorari in Flowers Foods, Inc. v. Brock (24-935), a case that squarely presents this important unresolved question, which sometimes is described as the “final mile” issue. Under a distribution agreement with Flowers Foods (also involved in Bissonnette), Brock, Inc., a company that operates entirely within Colorado, picks up, and delivers to its grocery store customers in Colorado, bread and other packaged baked goods that Flowers produces elsewhere but has delivered to, and unloaded at, a warehouse in Colorado. When Brock sued Flowers Foods over a contractual issue, Flowers Foods moved to compel arbitration in accordance with the distribution agreement’s arbitration provisions. The district court dismissed the motion to compel on the ground that Brock is covered by the § 1 exemption. The Tenth Circuit affirmed, and Flowers Foods then filed its petition for a writ of certiorari.
As they did at the petition stage, the Atlantic Legal Foundation and the DRI Center for Law and Public Policy have jointly submitted an amicus brief urging the Supreme Court to reverse the Tenth Circuit. The brief was authored by Sarah Elizabeth Spencer of SpencerWillson, PLLC. ALF Executive Vice President & General Counsel Larry Ebner served as co-counsel on the brief.
Are workers who deliver locally goods that travel in interstate commerce—but who do not transport the goods across borders nor interact with vehicles that cross borders—“transportation workers” “engaged in foreign or interstate commerce” for purposes of the Federal Arbitration Act’s § 1 exemption?
ALF’s Amicus Brief:
The brief argues that the Tenth Circuit adopted the correct legal test—asking whether local delivery constitutes the “final leg of a continuous interstate journey”—but applied the wrong factors. Rather than examining whether goods remain in practical, continuous movement toward a predetermined destination, the court of appeals treated upstream business control (pricing authority, security interests, operational oversight) as a proxy for movement continuity. This conflates two distinct inquiries: whether a supplier maintains control over a distribution relationship, and whether goods are still physically flowing in interstate transit.
Applying the Supreme Court’s “practical continuity of movement” test from Walling v. Jacksonville Paper Co., 317 U.S. 564 (1943), the amicus brief demonstrates that Flowers’ Colorado warehouse is the end of the Flowers baked goods’ interstate journey—not a waypoint. The bread and other baked goods arrive as general inventory (i.e., not pre-committed to specific retailers) and are unloaded and stored overnight. They then are re-sorted by route based on local allocation decisions, and then reloaded onto different trucks for local delivery. Unsold stale bread returns to the warehouse. These facts establish interruption, not continuity.
The amicus brief urges reversal to preserve the FAA’s structure and purpose: § 2’s broad rule favoring arbitration, with § 1’s narrow exemption limited to workers who actually are engaged in cross-border transportation.
Contact:
Email ALF Executive Vice President & General Counsel Lawrence Ebner
