“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Ninth Circuit judge Daniel Bress argued that each one of thousands of Amazon delivery drivers who the company allegedly underpaid in violation of federal law had to file individual arbitration claims, as opposed to pursuing a class action lawsuit. The majority, which consisted of two appointees of President George W. Bush, rejected that view and affirmed a district court ruling that Amazon could not enforce mandatory arbitration language in its contract with drivers in its August 2020 decision in Rittman v. Amazon.com, Inc.
Bernadean Rittman is one of many drivers who provide local “last mile” delivery services for a subsidiary of Amazon. Such drivers are required to sign contracts in which it is mandated that any disputes will be resolved through individual arbitration unless a driver opts out within 14 days. Rittman and several other drivers, one of whom had not opted out of arbitration, filed a lawsuit contending that Amazon had improperly classified them as independent contractors rather than employees and had improperly failed to pay them minimum wages and overtime, in violation of the Fair Labor Standards Act (FLSA) and state law. They sought to bring their claims as a class action on behalf of as many as 10,000 drivers who had been similarly treated.
Amazon moved to compel arbitration on the claims of the driver who had not opted out of arbitration, citing the Federal Arbitration Act (FAA) and other law. The district judge rejected Amazon’s motion, finding that the drivers are transportation workers engaged in interstate commerce who are exempt under the FAA. In addition, the court found that the arbitration provision could not be enforced independently of the FAA under federal or state law. Amazon appealed.
A panel of three Ninth Circuit judges considered the case, including Bress and two judges nominated by President George W. Bush, Milan Smith and Randy Smith. In an opinion by Judge Milan Smith, the two Bush appointees affirmed the district court in a 2-1 decision, with Trump judge Bress dissenting.
Judge Smith’s opinion carefully considered the language of the FAA as well as relevant case law. Noting that the FAA specifically exempted transportation workers “engaged in foreign or interstate commerce,” he explained that the Amazon drivers fall within this category because even though they drive locally, they “transport goods that are shipped across state lines” from around the country. This conclusion was supported by court of appeals decisions in the Ninth Circuit and across the country, Smith went on, particularly a recent First Circuit case concerning the same Amazon subsidiary. Smith also explained that, as the district court ruled, there was “no other ground” on which to enforce the arbitration agreement.
Trump judge Bress dissented, arguing that because the Amazon local drivers do not themselves cross state lines in “the course of making deliveries,” they should not be covered by the FAA exemption and the FAA should apply. Based on his interpretation of the statute and caselaw, he asserted that all local delivery is the same, and that the “out-of-state nature of the goods is irrelevant to the actual work” that the drivers perform. He claimed that his view accorded with a recent decision in which “the Seventh Circuit held” that “Grubhub delivery drivers” did not qualify for the FAA exemption.
Judge Smith showed what was wrong with Bress’ claims. The Seventh Circuit ruling relied on by Bress, Smith pointed out, “did not adopt the dissent’s interpretation” that workers must “actually cross state lines” to qualify for the exemption, and Grubhub’s “prepared meals from local restaurants” are “not a type of good” that is part of interstate commerce, as most of Amazon’s products are. In addition, Smith went on, the dissent’s claim that “all local delivery is the same” in fact “ignores Supreme Court precedent interpreting nearly identical language” in other statutes that does “consider the out-of-state nature of goods.” The majority’s interpretation, Smith explained, accords with the “meaning of the statute’s words at the time the FAA was enacted.”
As a result of the majority’s decision, the drivers’ case will go back to the district court for further proceedings, including the determination of whether it can be brought as a class action. If it had been up to Bress, however, each individual worker who did not specifically opt out of arbitration would be forced to individually arbitrate their claim. As the attorney for the plaintiffs pointed out, this would have been another example of “powerful corporations” using arbitration clauses to “shield themselves from class action lawsuits.”