Excluded from the FAA, But Not from Arbitration
by Michael Fox
Since the Supreme Court decided in Circuit City v. Adams that the workers excluded under the FAA was that very small group of transportation workers actually engaged in interstate commerce, we have waited for a case to outline the parameters of exactly who that would be. In Palcko v. Airborne Express, Inc. (3rd Cir. 6/18/04) [pdf] we learn it extends to a first line supervisor whose role includes "“monitoring and improving the performance of drivers under my supervision to insure [sic] timely and efficient delivery of packages.” As a second, not unexpected but important holding, the court held that even though the FAA did not apply, it did not preclude enforcement of the agreement under applicable state law. In this case, the parties had held that Washington state law was applicable in case the FAA did not apply. A nice touch, but it does not appear necessary to the basic holding.