Can an independent contractor have a "contract of employment"?

A pending petition for certiorari at the US Supreme Court raises the issue of whether the Federal Arbitration Act's Section 1 exemption, which applies on its face only to "contracts of employment," is inapplicable to independent contractor agreements.

I explore this case in the following 3:03 minute video:

This is New Prime, Inc. v. Oliveira [Briefs], from the 1st Circuit.

A truck driver sued – in a class action – claiming violation of minimum wage laws. The company moved to compel arbitration, citing the FAA, and the driver claimed his contract was not covered by the FAA, citing the following FAA Section 1 exception:

"contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."

The 1st Circuit held that the driver's contract was a "contract of employment" which led to the result that the FAA did not apply. Oliveira v.  New Prime, Inc. (1st Cir 05/12/2017) [PDF].

The 1st Circuit's reasoning was pretty simple. They found some dictionaries from the time the FAA was enacted (1925!) which said a contract of employment is "an agreement to do work." And an independent contractor has an agreement to do work. Hence, the FAA does not apply to this case.

There is some probability that the Supreme Court will grant certiorari because (1) lower court are divided on this issue (and the 1st Circuit's decision is an outlier), and (2) this is an issue with nationwide significance.

I expect the Court to take a look at this case at their February 16 conference, so we may know then whether the Court will decide to decide this case.

[For a list of current employment law cases, see Supreme Court Watch]