Massachusetts Food Delivery Drivers Not Exempt From Arbitration

• Published date: 16 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Rail, Road & Cycling, Arbitration & Dispute Resolution
• Law Firm: Holland & Knight
• Author: Mr Michael Maroney

One issue that continues to be debated in state and federal courts is whether delivery drivers who deliver takeout food and other prepackaged goods from restaurants, delicatessens and convenience stores fall into the class of transportation workers who are exempt from arbitration under Section 1 of the Federal Arbitration Act (FAA), 9 U.S.C. ' 1.

On July 27, 2022, the Massachusetts Supreme Judicial Court joined numerous courts that have addressed this question in concluding that delivery drivers are not exempt from arbitration. In Archer v. Grubhub, Inc., the Court held that former delivery drivers for Grubhub did not fit within the narrowly defined class of workers engaged in interstate commerce ' e.g. railroad workers, seamen or other workers contemplated by Congress when enacting Section 1 of the FAA ' because they transported goods that had already completed their interstate journey by the time the goods arrived at the restaurant, delicatessen or convenience store. Case No. SJC-13228, 2022 WL 2964639, at *5 (July 27, 2022).

In reaching this conclusion, the Court rejected the plaintiffs' argument that they are like Amazon "last-mile" delivery drivers, who the First Circuit Court of Appeals in Waithaka v. Amazon.com, 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 the Grubhub drivers were different than the "last-mile" drivers at issue in Waithaka because "in the 'last-mile driver' cases, from the moment the goods entered 'the flow of interstate commerce,' the goods were always 'destined for' the customers to whom the last-mile drivers made deliveries." Id. (citing Waithaka, 966 F.3d at 13, 20). By contrast, "at the moment the goods at issue [in Grubhub's case] entered the flow of interstate commerce, the destination was not the address of the Grubhub customer ordering the takeout food or convenience items for delivery." Id. Accordingly, "[a]ny subsequent journey taken by the goods in the hands of the Grubhub drivers, as part of the takeout meal, was not part of the ongoing and continuous interstate transmission of these goods." Id.

Appeal Set in Related Case

Earlier this month, however, former delivery drivers for Postmates, a food delivery service similar to Grubhub, made the same argument that was rejected in Archer to a federal appeals court. In their opening brief to the U.S. Court of Appeals for the First Circuit, the Postmates...