With the economic uncertainty wrought by the COVID-19 pandemic, it is more urgent than ever that gig economy workers be recognized as employees with the attendant rights, protections, and benefits like sick leave. Mandatory arbitration agreements that prohibit class actions are arguably the greatest current barrier to gig workers vindicating their employment rights. Under the Federal Arbitration Act (FAA), these agreements are enforceable except under very narrow circumstances. Yet, three ongoing cases in the First Circuit and Third Circuit will determine whether Uber drivers in New Jersey, Lyft drivers in Massachusetts, and Amazon delivery drivers in Massachusetts, are exempt from the FAA—and can in turn avoid being compelled to arbitrate their misclassification claims.

The cases, Singh v. Uber in the Third Circuit and Cunningham v. Lyft and Waithaka v. Amazon in the First Circuit, form part of the rapidly developing caselaw interpreting Section 1 of the FAA, which exempts transportation workers “engaged in interstate commerce.” If a court finds a class of workers to be exempt, then the FAA falls away, and these workers become free to challenge arbitration agreements containing class waivers on the basis that they violate state public policy. The determinative question that the Waithaka, Cunningham, and Singh decisions must answer is which workers—or more specifically, which drivers—are transportation workers engaged in interstate commerce?