May 28, 2026
The U.S. Supreme Court’s ruling Thursday that an arbitration exemption can cover delivery drivers, who complete the last leg of an interstate journey but themselves don’t cross state lines or touch a vehicle that does, doesn’t entirely address distribution agreements and class action waivers, attorneys said.
In Flowers Foods Inc. et al. v. Angelo Brock, the justices unanimously sided with drivers bringing wage claims, finding that they fall under the Federal Arbitration Act’s Section 1 carveout for transportation workers engaged in interstate commerce and therefore can keep their claims in court.
However, attorneys said potential pathways remain for companies to keep such drivers’ claims out of court, and that the justices’ ruling is narrow.
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However, worker-side attorney Rebecca Ojserkis of Cohen Milstein Sellers & Toll PLLC said Thursday’s decision was undoubtedly a win for drivers.
“There are thousands upon thousands of workers who now can pursue their claims in court,” Ojserkis said. “This is a huge development for a really substantial body of workers.”
But she acknowledged that “what workers this applies to is to some extent still an open question.”
The distribution agreements question in future litigation might separate last-mile drivers like the ones in Flowers Foods from those in other cases who do not take title of and then resell the goods at any point, said Ojserkis, who added that she represents drivers in the latter situation.
Another question is whether a worker who avoids arbitration under Section 1 can still bring claims on behalf of a class, when the underlying arbitration agreement contains a class action waiver, according to Ojserkis.
The answer to that question might depend on severability language in the contracts or where the worker brings the case, as some states say class action waivers are unenforceable, she said.
With such issues remaining, perhaps companies will see arbitration agreements as too complicated and instead opt to stay in court, especially when a worker does a combination of different kinds of transportation work, Ojserkis said.
“Instead of trying to creatively figure out how to still get into arbitration,” she said, “I would
encourage employers to think about whether this push to keep things out of court is still a venture they should pursue.”
Read Justices’ ‘Last-Mile’ Driver Ruling Leaves Open Questions.