Flowers Foods Drivers Nab High Court Look at Arbitration Dispute

Drivers who deliver baked goods for Flowers Foods Inc. and say they fall under a transportation worker exemption to federal arbitration laws convinced the US Supreme Court on Friday to take a look at their case.

The workers urged the high court to overturn a Second Circuit decision preventing them from using the Federal Arbitration Act exemption to avoid arbitrating would-be class claims that the baked goods producer and two subsidiaries misclassified them as independent contractors instead of employees entitled to greater wage protections.

The case offers the justices a chance to further clarify who qualifies for the FAA’s transportation worker exemption and when.

Petitioners Neal Bissonnette and Tyler Wojnarowski deliver baked goods under distribution agreements with Flowers Foods and subsidiaries LepageBakeries Park Street LLC and CK Sales Co. The companies produce baked goods and other products under brands like Wonder Bread and Tastykake.

The US Court of Appeals for the Second Circuit’s 2-1 ruling contravenes the Supreme Court’s holding in Southwest Airlines Co. v. Saxon, according to the petition for review the workers filed in July. Saxon, issued in June 2022, expanded the reach of the FAA’s carveout for transportation workers.

The drivers asked the Supreme Court to weigh in on whether workers engaged in interstate transportation must also be employed by a company in the transportation industry to take advantage of the exemption. Flowers Foods characterized the question for the high court as whether the exemption applies to business-to-business franchise agreements involving intrastate distribution territories.

The question of whether truck drivers count as transportation workers “may seem unlikely to provoke serious disagreement,” but it’s led to a circuit split on how to apply the FAA exemption in the wake of Saxon, the workers’ petition said.

The First and Seventh circuits have ruled that the exemption is available to any member of a class of workers engaged in foreign or interstate transportation. However, the Second and Eleventh circuits have added a requirement that the worker’s employer also be in the transportation industry, according to the petition.

Flowers Foods told the high court that review was “manifestly unwarranted.” The Second Circuit’s approach to Saxon is correct, and the drivers “dramatically overstate the supposed circuit split,” the company said in its August opposition brief.

Gupta Wessler LLP and Lichten & Liss-Riordan PC represent the drivers. Jones Day and Ogletree, Deakins, Nash, Smoak & Stewart PC represent Flowers Foods and its subsidiaries.

The case is Bissonnette v. LePage Bakeries Park St. LLC, U.S., No. 23-51, petition granted 9/29/23.