Massachusetts food delivery drivers not exempt from arbitration | Holland & Knight LLP


A question that continues to be debated in state and federal courts is whether delivery drivers who deliver takeout and other prepackaged goods to restaurants, delis, and convenience stores fall into the category. transportation workers who are exempt from arbitration under Federal Arbitration (FAA) Section 1, 9 USC § 1.

On July 27, 2022, the Massachusetts Supreme Judicial Court joined numerous courts that have considered this issue in concluding that delivery drivers are not exempt from arbitration. In Archer vs. Grubhub, Inc., the Court held that former Grubhub delivery drivers did not fall into the narrowly defined category of workers engaged in interstate commerce — for example, railroad workers, sailors, or other workers contemplated by Congress in the enactment of FAA Section 1 – because they were transporting goods that had already completed their interstate journey by the time the goods arrived at the restaurant, deli, or convenience store. Case No. SJC-13228, 2022 WL 2964639, at *5 (July 27, 2022).

In coming to this conclusion, the Court rejected plaintiffs’ argument that they are like Amazon’s “last mile” delivery drivers, which the First Circuit Court of Appeals of Waithaka v, Inc., 966 F.3d 10 (1st Cir. 2020) found were “engaged in interstate commerce” within the meaning of Section 1 of the FAA. The Supreme Judicial Court explained that Grubhub drivers were different from the “last mile” drivers at issue in Waithaka because “in the cases of the ‘last mile driver’, from the moment the goods entered the ‘interstate commerce flow’, the goods were always ‘intended’ for the customers to whom the last mile drivers made deliveries .” ID. (citing Waithaka, 966 F.3d at 13, 20). On the other hand, “for the time being, the goods in issue [in Grubhub’s case] entered the interstate commerce flow, the destination was not the address of the Grubhub customer ordering takeout or convenience items for delivery.” ID. Consequently, “[a]any subsequent journeys made by the goods in the hands of Grubhub drivers, as part of the take-out meal, were not part of the ongoing, ongoing interstate transmission of those goods. » ID.

Appeal defined in related matter

Earlier this month, however, former delivery drivers from Postmates, a food delivery service similar to Grubhub, made the same argument which was dismissed in Archer to a federal appeals court. In their opening brief to the United States Court of Appeals for the First Circuit, the Postmates delivery drivers argued that they fell under the FAA Section 1 exemption because the items they deliver are often carried in the flow of interstate commerce and their journey does not end until the goods are delivered to the consumer. Immediateo vs. Postmates, Inc., Appeal No. 22-1015, Plaintiffs-Appellants’ Opening Brief, p. 10-11 (1st Cir. Aug. 10, 2022). Drivers acknowledged that many courts, including the Supreme Judicial Court of Archerdetermined that food delivery drivers are not exempt from arbitration under the Section 1 exemption, but they attempted to single out these cases by saying, “none of these cases made the not analyzed in detail nor explained why concert delivery drivers are different from the last mile drivers involved in Waithaka.” ID. at 12 n.6. Of course, as noted above, the Supreme Court of Justice explained why Grubhub delivery drivers are different from Amazon last mile delivery drivers. See ArcherCase No. SJC-13228, 2022 WL 2964639, at *5.

The New England Legal Foundation amicus brief filed in Archer also explained why on-demand delivery drivers are different from last-mile delivery drivers, based on the US Supreme Court’s decision in Walling v Jacksonville Paper Co., 317 U.S. 564 (1943). Specifically, while last mile delivery drivers may be exempt from the FAA, “because they are part of a single, continuous, and carefully organized interstate transaction that was fully in place when the goods began their interstate journey. “, Grubhub’s delivery drivers and other comparable online and mobile businesses do not engage in interstate commerce when providing local transportation of goods “acquired and owned by a local merchant for local layout.” Case No. SJC-13228, Brief of Amicus Curiae New England Legal Foundation in Support of the Defendant-Appellant, at pages 13, 16-17 (April 1, 2022) (citing Masonry317 US to 570 (emphasis added).

Conclusion and next steps

As noted by the Supreme Court of Justice in Archerthere is a “uniform wave of authority” in the courts that drivers who deliver take-out food and other pre-packaged goods to restaurants, delis and convenience stores are not exempt from arbitration under FAA Transportation Worker Exemption.

It will be interesting to see how the first circuit solves the problem by Immediate c. postmates. Postmate opening memory in Immediate is due in a few weeks, and Holland & Knight’s transport blog will continue to follow this and related cases.


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