The New England Legal Foundation (NELF) filed an amicus brief in the Massachusetts Supreme Court in Veronica Archer et al. v. Grubhub Holdings, Inc., responding to the Court’s request for amicus briefs on the issue whether local delivery drivers for online and mobile food ordering and delivery services, such as Grubhub, qualify for the Federal Arbitration Act’s exemption, which applies to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The United States Supreme Court has interpreted this catch-all category to apply only to interstate transportation workers who move goods (or passengers) across state lines in a way that is comparable to the work of seamen and railroad employees. The Grubhub delivery drivers signed arbitration agreements with Grubhub, which required them to arbitrate all work-related disputes, on an individual basis only, unless the drivers opted out of the arbitration agreements within 30 days of signing them. They did not opt out of the arbitration agreements. In spite of their arbitration agreements, the drivers brought a (potential) class action in state court, suing Grubhub for violating various provisions of the Massachusetts wage laws. Grubhub moved to compel the individual arbitration of their claims. The Superior Court denied Grubhub’s motion, concluding that the drivers were exempt from the FAA because, in addition to delivering prepared meals from local restaurants, they also delivered goods, obtained from the shelves of local stores, that had come from out of state. In NELF’s brief, Senior Staff Attorney Ben Robbins argues that the Superior Court was wrong and that Grubhub drivers are not exempt from the FAA. Under clear United States Supreme Court case law, the drivers do not move any goods in interstate commerce. Instead, they merely deliver goods that are no longer in interstate commerce, from the shelves of local stores to local customers. The interstate transport of those goods ended when Massachusetts merchants received the goods from out-of-state sources, according to prior arrangements between those parties. The subsequent sale and delivery of those goods, via the delivery drivers, is an altogether separate and local transaction. There was simply no contract or arrangement between the out-of-state source of the goods and Grubhub itself to deliver the goods continuously and all the way to the Massachusetts customers. NELF’s position is consistent with longstanding Supreme Court precedent, and with recent decisions from lower federal courts, which establish that the local transport of goods (or passengers) arriving from another state is not part of interstate commerce, unless that local transport is the planned final leg of a continuous delivery route that was fully in place, by contract or some other arrangement, when the goods (or passengers) began their interstate journey. Goods that are acquired and held by local stores for local sale, as in this case, fail this test. By contrast, Amazon.com’s “last-mile” drivers are a good example of drivers who are actually engaged in interstate transportation under this test, and are therefore exempt from the FAA.
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