Richard Reibstein, a Partner in Locke Lord’s Labor and Employment Practice in New York and co-head of the Firm’s Independent Contractor Misclassification and Compliance Practice, was quoted in Law360 on a Ninth Circuit decision that aligned with the First Circuit, confirming a delivery driver in Washington state who independently contracted with Amazon.com Inc. and Amazon Logistics Inc. to handle last-mile deliveries fit the definition of transportation workers engaged in interstate commerce. This designation allows the drivers to pursue their wage-and-hour action in court instead of being forced into private arbitration.
According to the Law360 article, the Ninth Circuit decision dissent said all local delivery is the same, regardless of what is being delivered or from where, and the majority's decision might lead to doubt on whether a dispute is arbitrable. Reibstein remarked that the dissenting opinion showed how the majority's opinion "will create uncertainty and contribute to endless litigation, which the federal arbitration law was supposed to avoid."
However, Reibstein explained that state arbitration law can provide an alternative basis for the courts to compel arbitration. He said the Ninth Circuit's decision will have limited impact because the court's decision is based on a contract provision unlikely to be found in any other company's arbitration agreement, which provided that only the federal arbitration law would apply and that arbitration state law would not. Companies that use interstate transportation workers may still enjoy a safe harbor if their arbitration agreements are drafted with this case in mind, Reibstein said.
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