In Bissonnette v. LePage Bakeries, 49 F.4th 655 (2d Cir. 2022), the U.S. Court of Appeals for the Second Circuit revisited its prior decision finding that truck drivers who deliver baked goods do not fall within the “transportation workers” exemption in the Federal Arbitration Act (FAA). The Second Circuit did so because, in the intervening period, the U.S. Supreme Court had addressed the scope of the “transportation worker” exemption in Southwest Airlines v. Saxon, 142 S.Ct. 1783 (2022). In an opinion authored by Senior Circuit Judge Dennis Jacobs and joined by District Court Judge Gujarati, the majority in Bissonnette adhered to its prior ruling finding that the truck drivers were not “transportation workers.” Circuit Judge Rosemary Pooler dissented, opining that the majority decision conflicted with the Supreme Court’s decision in Saxon.

In February, the Second Circuit subsequently denied rehearing en banc. Bissonnette v. LePage Bakeries Park St., 59 F.4th 594 (2d Cir. 2023). But Circuit Judge Alison J. Nathan, joined by Circuit Judges Beth Robinson and Myrna Pérez, dissented from the order on the basis that the majority’s decision was in direct conflict with Saxon because it ignored the type of work the truck drivers are engaged in and erroneously focused only on the industry of their employer. Judge Jacobs issued a statement supporting the denial of rehearing en banc, while Judge Pooler issued a statement opposing the denial. Considering the disagreement among members of the Second Circuit regarding the correct application of Saxon, as well as the possibility that other circuits may also struggle to reach consensus on the meaning of the decision, the Supreme Court may need to clarify whether the definition of “transportation worker” encompasses employees who perform transportation work but do not work in a transportation industry.

The Federal Arbitration Act Exemption