Judges have three chances this term to reinforce the arbitration

United States Supreme Court building in Washington, D.C.

The interests of employers and independent contractors in the transportation sector clashed On Wednesday in the US Supreme Court, judges wondered whether these workers should submit their disputes to arbitration.

The major problem in New Premier v. Oliveira focuses on an arbitration exemption under section 1 of the Federal Arbitration Act. The exemption applies to "employment contracts of seamen, railway employees or any other category of workers engaged in foreign or interstate commerce".

In addition to the question of whether the exemption applies to independent contractors, the judges also agreed to decide the crucial question of who should answer the question first: a court or an arbitrator.

The challenge is one of three arbitration cases already on the record of the court proceedings in the new period.

outraged New first, the judges will hear case October 29 at Lamp Plus v. Varela On the point of whether the Federal Arbitration Act, or the FAA, prevents a court from concluding that under state law, an ambiguous arbitration agreement allows for group arbitration. The same day, Henry Schein c. Archer and White Sales will be discussed on the question of whether the Federal Arbitration Act allows a court to refuse to enforce an agreement that delegates arbitrability issues to an arbitrator if it considers that the request for arbitration Arbitrability is "unfounded".

All three cases follow last-quarter blockbuster heels Epic Systems v. Lewis, a trilogy of challenges in which a majority of 5 votes out of 4 said that agreements between employees prohibiting collective or collective actions were enforceable under the Federal Arbitration Act.

Dominic Oliveira, an independent contractor and former New Prime driver, brought an alleged class action in federal court, charging New Prime with violation of the minimum wage under the Fair Labor Standards Act and breach of contract. New Prime, an interstate trucking company, has decided to appeal to arbitration. The US Court of Appeals for the First Circuit agreed with Oliveira that as an independent contractor he was exempt from the arbitration process.

During Wednesday's debates, Gibson, Dunn & Crutcher Theodore Boutrous, partner of New Prime, explained that the "clear sense of the law and its structure, purpose, history and context" clearly indicate that the "employment contracts" in section 1 only include establishing an employer-employee relationship under the law. rules of common law agencies – and this does not include contracts with independent contractors.

Judge Neil Gorsuch, however, told Boutrous that in 1925, when the Federal Arbitration Act was passed, Congress made no distinction between employees and independent contractors. "There is a lot of historical evidence that the" contract of employment "has swept more widely," he said.

Not "just a lot," said Oliveira's lawyer Jennifer Bennett of Public Justice. She argued that there was "overwhelming evidence" in 1925 that employment contracts constituted a general category of agreements for the performance of work.

"The Congress passed a number of contemporary FAA laws that all used the term" employment contracts "to refer to contracts with independent contractors to do work," Bennett said.

Derek Barella, partner of Schiff Hardin's labor and employment practice group, said the court's decision had "the potential to impact the entire economy" account given the "substantial and growing population of independent contractors in the transport sector and the fact that many companies rely on arbitration to resolve disputes. "

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