All of this has happened before. All of this will happen again. A business signs contracts with its workers (or its customers, or suppliers, or anybody else for that matter), in which the workers agree that they will resolve any disputes before an arbitrator rather than a court. Employees often do not like arbitration, in part because they worry that the arbitrator will be more favorable to the employer than a court. The lower courts hold the agreements unenforceable (reflecting a longstanding judicial suspicion of a contract premised on the notion that employers prefer to limit judicial scrutiny of their behavior). The Supreme Court grants review and in a closely divided decision holds that the Federal Arbitration Act requires that the disputes be sent to arbitration. It would be easy to predict such a fate for New Prime Inc. v. Oliveira, on the argument calendar for the first Wednesday of the new term.
But I’m not at all sure this case will drop into that particular pigeonhole. The case involves an exception from the FAA for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” These particular workers are long-haul truck drivers. For a variety of reasons, the arrangements between trucking companies (such as petitioner New Prime) and the individuals who drive the trucks carrying the goods consigned to the trucking companies often document the drivers as independent contractors rather than employees.
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