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Ahh, the Federal Arbitration Act (“FAA”), stripping rights from employees since 1925! While it was created as an alternative to litigation with the hopes of making a resolution faster and easier in commercial disputes, it was judicially broadened to cover all disputes and now comes at a cost born by employees. As you may have read, Spitz, The Employee’s Law Firm has issues with forcing employees into arbitration. (Best Law Read: The Supreme Court Reaffirms Preference for Arbitration In Employment Discrimination Cases). An employee who is forced into arbitration loses the right to present their case to a jury, loses the ability to compel testimony through the use of a subpoena, and has their case decided by an attorney that probably has years of experience defending companies from the kinds of claims the employee is bringing.

While some strides have been made to permit employees to bring sexual harassment claims in court despite an arbitration agreement (Best Law Read: Step 1: House Passes “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act”; Step 2: Senate Passes Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act; Step 3: President Biden Signs The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act Into Law), wrongfully terminated employees are still forced to rely on the narrow exceptions in the FAA to have their day in court.

Is my job exempt from arbitration requirements?

Top Wrongful Termination Attorney Answer: As attorneys are found of saying – it depends! In most jobs, employees will be bound to properly entered arbitration agreements except for claims relating to sexual harassment and sexual assault cases. There are other exceptions.

Unfortunately, in Lopez v. Cintas Corporation, 47 F.4th 428 (5th Cir. 2022), the United States Court of Appeals for the Fifth Circuit, recently restricted one of those exceptions when it narrowed the definition of “transportation workers.”

Douglas Lopez was a Cintas delivery driver in the Houston area. He was terminated and sued for disability discrimination and wrongful termination. Cintas fought Lopez’s lawsuit and stated that he signed an employment contract and as part of that contract agreed to arbitrate any claims related to his employment. Lopez fought back, saying that he was exempted from arbitration.

Section 1 of the FAA specifically exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” However, in Circuit City Stores, Inc. v Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.E.2d 234 (2001), the Supreme Court clarified that the “any other class of workers” language only exempts “contracts of employment of transportation workers.”

How do I figure out if I am a transportation worker?

Best Anti-Arbitration Attorney Answer: Lopez argued that he was a transportation worker and exempt from arbitration. The Court relied on a recent opinion from the United States Supreme Court, Southwest Airlines Co. v Saxon, 142 S.Ct. 1783, 142 S. Ct. 1783, 213 L.Ed.2d 27 (2022), that laid out the proper framework to determine whether a person falls within the transportation-worker exemption. First, the court had to define the relevant “class of workers” that Lopez belonged to. Second, the court had to determine whether that class of workers was “engaged in interstate or foreign commerce.” (Best Law Read: Planes, Trains, and Automobiles – What Workers Are Exempt From the Federal Arbitration Act?).

The Fifth Circuit looked at the work Lopez actually did when deciding to which “class of workers” he belonged. Lopez described himself as a “last mile driver” but the Court decided that because his job involved sales and customer service and that he picked up items from a local warehouse and delivered to local customers, he was more appropriately called a “local delivery driver.”

While it may not seem important, it’s a preview of the groundwork the Court is laying for their decision. By emphasizing local, the Court calling Lopez’s class of workers local delivery drivers begins to edge the position away from an exemption as someone engaged in interstate (across state borders) or foreign commerce.

Unsurprisingly, the Court found that Lopez was not engaged in interstate or foreign commerce and was not exempt from the FAA. In Saxon, the Supreme Court determined that airline employees who physically load and unload cargo for airplanes that travelled in interstate commerce were part of the interstate transportation of goods. For the Fifth Circuit, “local delivery drivers” were too far removed from interstate commerce to be eligible for the exemption.

Because Saxon specifically did not determine whether classes further removed from the channels of interstate commerce or the actual crossing of borders where exempt, this became the Fifth Circuit’s first opportunity to address the issue after the Saxon ruling. It focused on Saxon’s clarification that a transportation worker but be actively engaged in transportation of goods across borders and that any worker must at least play a direct and necessary role in the free flow of goods across borders.

Are delivery drivers transportation workers?

Best Transportation Worker Attorney Answer: Not if you’re in Texas! Finding that interstate commerce ended when the goods arrived at Cintas’ Houston warehouse and were unloaded, the Court determined that Lopez was not exempt from arbitration as a transportation worker. Of course, if you were in the First or Ninth Circuits, you would have a different answer. Both Circuits consider the driver who makes the final delivery to a customer (a “last-mile driver” to be engaged in interstate commerce and exempt from arbitration. See, Rittmann v., Inc., 971 F.3d 904, 915–19 (9th Cir. 2020) and Waithaka v., Inc., 966 F.3d 10, 13 (1st Cir. 2020). Without last-mile delivery drivers, how else will you get what you ordered from out-of-state? Of course, you cannot always count on judges to be logical. (Best Law Read: According To Judges, Are Bumblebees Considered Fish?; Judges Disagree Whether Elephant Is Person).

How do I know if I can challenge an arbitration agreement?

Best Employment Lawyer Answer: If you have been harassed, discriminated against, retaliated against, or wrongfully terminated and are being forced into arbitration, call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


This employment law website is an advertisement. The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Why can’t I sue in court for being wrongfully terminated?” it would be best for to contact an experienced attorney to obtain advice with respect to any hostile work environment employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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