In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-1564 & 19-2156
CARMEN WALLACE, individually and on behalf of all others
similarly situated, et al.,
Plaintiffs-Appellants,
v.
GRUBHUB HOLDINGS, INC., and GRUBHUB, INC.,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cv-4538 — Edmond E. Chang, Judge.
No. 16-cv-6720 — Charles R. Norgle, Judge.
____________________
ARGUED FEBRUARY 12, 2020 — DECIDED AUGUST 4, 2020
____________________
Before BAUER, KANNE, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. Section 1 of the Federal Arbitration
Act exempts from the Act’s coverage “contracts of employ-
ment” of two enumerated categories of workers—“seamen”
and “railroad employees.” But it also exempts the contracts of
a residual category—“any other class of workers engaged in
foreign or interstate commerce.” This appeal requires us to
2 Nos. 19-1564 & 19-2156
decide whether food delivery drivers for Grubhub are exempt
from the Act under § 1’s residual category.
Grubhub calls itself an “online and mobile food-ordering
and delivery marketplace.” It provides a platform for diners
to order takeout from local restaurants, either online or via its
mobile app. When a diner places an order through Grubhub’s
app, Grubhub transmits the order to the restaurant, which
then prepares the diner’s meal. Once the food is ready, the
diner can either pick it up herself or request that Grubhub dis-
patch a driver to deliver it to her.
Grubhub considers its drivers to be independent contrac-
tors rather than employees entitled to the protections of the
Fair Labor Standards Act. The plaintiffs in these consolidated
appeals—who worked as drivers in cities including Chicago,
Portland, and New York—disagree. Between them, they filed
two suits against Grubhub, alleging, among other things, that
Grubhub violated the Fair Labor Standards Act by failing to
pay them overtime. But their suits quickly hit a procedural
roadblock. Each of the plaintiffs had signed a “Delivery Ser-
vice Provider Agreement” that required them to submit to ar-
bitration for “any and all claims” arising out of their relation-
ship with Grubhub. In both cases, Grubhub moved to compel
arbitration, and in both cases, the plaintiffs responded that the
district court could not compel them to arbitrate because, as
“workers engaged in foreign or interstate commerce,” their
contracts with Grubhub were exempt from the Federal Arbi-
tration Act (FAA). Both district courts concluded that the FAA
applied and compelled arbitration.
Enacted in 1925, the FAA was Congress’s response to the
general “hostility of American courts to the enforcement of
arbitration agreements.” Circuit City Stores, Inc. v. Adams, 532
Nos. 19-1564 & 19-2156 3
U.S. 105, 111 (2001). It sought to replace that “widespread ju-
dicial hostility” with a “liberal federal policy favoring arbitra-
tion.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339
(2011) (citation omitted). In pursuit of that goal, the FAA
sweeps broadly, “requir[ing] courts rigorously to enforce ar-
bitration agreements according to their terms.” Epic Sys. Corp.
v. Lewis, 138 S. Ct. 1612, 1621 (2018) (citation and internal quo-
tation marks omitted).
But its breadth is not unqualified. As relevant here, § 1 of
the Act provides that “nothing herein contained shall apply
to contracts of employment of seamen, railroad employees, or
any other class of workers engaged in foreign or interstate
commerce.” 9 U.S.C. § 1.1 In other words, it exempts two enu-
merated categories of workers—“seamen” and “railroad em-
ployees”—as well as what we will call the residual category—
“any other class of workers engaged in foreign or interstate
commerce.” The plaintiffs insist that they fall within this last
category. To decide whether they are right, we must deter-
mine what membership in that category requires.
As with any question of statutory interpretation, our in-
quiry “begins with the text.” Ross v. Blake, 136 S. Ct. 1850, 1856
(2016). And the first thing we see in the text of the residual
category is that the operative unit is a “class of workers.” So
we know that in determining whether the exemption applies,
the question is “not whether the individual worker actually
1 The Supreme Court has held that “contracts of employment” in § 1
includes not only contracts between employers and employees but also
contracts with independent contractors. See generally New Prime Inc. v.
Oliveira, 139 S. Ct. 532 (2019). So for present purposes, it is not important
whether the plaintiffs here are employees, as they contend, or independ-
ent contractors.
4 Nos. 19-1564 & 19-2156
engaged in interstate commerce, but whether the class of work-
ers to which the complaining worker belonged engaged in inter-
state commerce.” Bacashihua v. U.S. Postal Serv., 859 F.2d 402,
405 (6th Cir. 1988) (emphasis added). That means that a mem-
ber of the class qualifies for the exemption even if she does
not personally “engage in interstate commerce.” Id. By the
same token, someone whose occupation is not defined by its
engagement in interstate commerce does not qualify for the
exemption just because she occasionally performs that kind of
work. Hill v. Rent-A-Center, 398 F.3d 1286, 1289–90 (11th Cir.
2005).
That immediately leads to the next question: What does it
mean for a class of workers to be “engaged in interstate com-
merce”? The Supreme Court’s decision in Circuit City goes a
long way toward providing an answer. In that case, the plain-
tiff argued that § 1’s residual category reached all employ-
ment contracts within Congress’s commerce power—essen-
tially, all employment contracts—leaving the FAA applicable
only to commercial arbitration agreements. 532 U.S. at 114.
The Court rejected the proposition that the exemption was co-
terminous with Congress’s authority to regulate employment
contracts, holding instead that the residual clause applies
only to the employment contracts of workers engaged in the
movement of goods in interstate commerce. Id. at 119.
In reaching that result, the Court explained that the phrase
“engaged in commerce” as used in § 1 meant something nar-
rower than “affecting commerce” or “involving commerce”
as used in § 2. While the latter two phrases evoke the full
reach of Congress’s commerce power, the phrase “engaged in
commerce” has “a more limited reach,” id. at 115, referring
instead to “active employment” in interstate commerce. Id. at
Nos. 19-1564 & 19-2156 5
116 (citation omitted). The narrower reading is confirmed by
the presence of specific exemptions for “seamen” and “rail-
road workers,” the Court said, for if the residual category
were a blanket exemption for all employment contracts, these
specific exemptions would have been wholly unnecessary. Id.
at 114. Far from being superfluous, the enumerated categories
play a key role in defining the scope of the residual clause,
which should “be controlled and defined by reference to the
enumerated categories of workers which are recited just be-
fore it.” Id. at 115. That is to say, “[t]he wording of § 1 calls for
the application of the maxim of ejusdem generis,” id. at 114, the
rule that “[w]here general words follow an enumeration of
two or more things, they apply only to persons or things of
the same general kind or class specifically mentioned.”
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 199 (2012). The residual
clause, then, exempts only workers who are akin to “seamen”
and “railroad employees,” a category that the Court described
as “transportation workers.” Circuit City, 532 U.S. at 119.
Both we and our sister circuits have repeatedly empha-
sized that transportation workers are those who are “actually
engaged in the movement of goods in interstate commerce.”
Int’l Brotherhood of Teamsters Local Union No. 50 v. Kienstra Pre-
cast, LLC, 702 F.3d 954, 956 (7th Cir. 2012) (quoting Circuit
City, 532 U.S. at 112).2 To determine whether a class of
2 See, e.g., Waithaka v. Amazon.com, Inc., No. 19-1848, 2020 WL 4034997,
at *11 (1st Cir. July 17, 2020) (asking whether the class to which a plaintiff
belongs qualifies a class of “transportation workers ‘engaged in … inter-
state commerce,’ regardless of whether the [individual] workers them-
selves physically cross state lines” (citations omitted)); Singh v. Uber Techs.,
Inc., 939 F.3d 210, 220 (3d Cir. 2019) (holding that the residual clause “only
includes those other classes of workers ‘who are actually engaged in the
6 Nos. 19-1564 & 19-2156
workers meets that definition, we consider whether the inter-
state movement of goods is a central part of the class mem-
bers’ job description. Compare New Prime Inc. v. Oliveira, 139 S.
Ct. 532, 539 (2019) (observing that interstate truckers are
plainly transportation workers), with Hill, 398 F.3d at 1289–90
(holding that furniture salespeople are not “transportation
workers” even if they occasionally deliver furniture to out-of-
state customers). Then, if such a class exists, we ask in turn
whether the plaintiff is a member of it. Compare Kienstra Pre-
cast, 702 F.3d at 957 (holding that truckers were part of the
movement of interstate or foreign commerce or in work so closely related
thereto as to be in practical effect part of it’” (citation omitted)); Kienstra
Precast, 702 F.3d at 956 (holding that “[b]y ‘transportation workers,’ the
Supreme Court meant workers, like the ‘seamen and railroad employees’
expressly referenced in § 1, that are ‘actually engaged in the movement of
goods in interstate commerce’” (citation omitted)); Lenz v. Yellow Transp.,
Inc., 431 F.3d 348, 352–53 (8th Cir. 2005) (holding that a customer service
representative was not a “transportation worker” and thus not exempt un-
der § 1); Hill v. Rent-A-Center, Inc., 398 F.3d 1286, 1289 (11th Cir. 2005)
(“The emphasis, therefore, was on a class of workers in the transportation
industry, rather than on workers who incidentally transported goods in-
terstate as part of their job in an industry that would otherwise be unreg-
ulated.”); McWilliams v. Logicon, Inc., 143 F.3d 573, 576 (10th Cir. 1998)
(holding that § 1 “include[s] only employees actually engaged in the chan-
nels of foreign or interstate commerce”); Cole v. Burns Int’l Sec. Servs., 105
F.3d 1465, 1471 (D.C. Cir. 1997) (holding that “section 1 of the FAA ex-
empts only the employment contracts of workers actually engaged in the
movement of goods in interstate commerce”); Rojas v. TK Commc’ns, Inc.,
87 F.3d 745, 747 (5th Cir. 1996) (holding that a radio DJ was not a worker
“engaged in interstate commerce”); Asplundh Tree Expert Co. v. Bates, 71
F.3d 592, 600–01 (6th Cir. 1995) (holding that § 1 “should be narrowly con-
strued to apply to employment contracts of seamen, railroad workers, and
any other class of workers actually engaged in the movement of goods in
interstate commerce in the same way that seamen and railroad workers
are”).
Nos. 19-1564 & 19-2156 7
class of interstate truckers because they hauled some deliver-
ies across state lines), with Lenz v. Yellow Transp., Inc., 431 F.3d
348, 351–53 (8th Cir. 2005) (holding that a customer service
representative at an interstate trucking company was not a
member of the relevant class). Sometimes that determination
is easy to make—as it is for truckers who drive an interstate
route. See, e.g., New Prime, 139 S. Ct. at 539. Sometimes that
determination is harder—as it is for truckers who drive an in-
trastate leg of an interstate route. See, e.g., Waithaka v. Ama-
zon.com, Inc., No. 19-1848, 2020 WL 4034997, at *11 (1st Cir.
July 17, 2020) (holding that a last-leg delivery driver qualified
as a transportation worker). Whether easy or hard, though,
the inquiry is always focused on the worker’s active engage-
ment in the enterprise of moving goods across interstate lines.
That is the inquiry that Circuit City demands.
The plaintiffs in today’s case, however, completely ignore
the governing framework. Rather than focusing on whether
they belong to a class of workers actively engaged in the
movement of goods across interstate lines, the plaintiffs stress
that they carry goods that have moved across state and even
national lines. A package of potato chips, for instance, may
travel across several states before landing in a meal prepared
by a local restaurant and delivered by a Grubhub driver; like-
wise, a piece of dessert chocolate may have traveled all the
way from Switzerland. The plaintiffs insist that delivering
such goods brings their contracts with Grubhub within § 1 of
the FAA. As they see it, the residual exemption is not so much
about what the worker does as about where the goods have
been.
But to fall within the exemption, the workers must be con-
nected not simply to the goods, but to the act of moving those
8 Nos. 19-1564 & 19-2156
goods across state or national borders. Put differently, a class
of workers must themselves be “engaged in the channels of for-
eign or interstate commerce.” McWilliams v. Logicon, Inc., 143
F.3d 573, 576 (10th Cir. 1998) (emphasis added). That, after all,
is what it means to be a transportation worker who performs
work analogous to that of seamen and railroad employees,
whose occupations are centered on the transport of goods in
interstate or foreign commerce. By erasing that requirement
from the statute, the plaintiffs’ interpretation would sweep in
numerous categories of workers whose occupations have
nothing to do with interstate transport—for example, dry
cleaners who deliver pressed shirts manufactured in Taiwan
and ice cream truck drivers selling treats made with milk
from an out-of-state dairy. That result would run afoul of the
Court’s instruction that the scope of the residual clause “be
controlled and defined” by the work done by seamen and rail-
road workers, Circuit City, 532 U.S. at 106, not to mention its
admonition that § 1 as a whole must be “afforded a narrow
construction.” Id. at 118.
The plaintiffs try to support their position by emphasizing
that the FAA only applies to written agreements to arbitrate
contained within a “contract evidencing a transaction involv-
ing commerce.” 9 U.S.C. § 2; see also New Prime, 139 S. Ct. at
537. If they aren’t “engaged in interstate commerce” for pur-
poses of § 1, the plaintiffs ask, then how can their employment
agreements “involv[e] commerce” for purposes of § 2? To put
it another way: either they are engaged in commerce, so their
contracts are exempt from the FAA under § 1, or they are not
engaged in commerce, in which case their contracts are still
exempt from the FAA under § 2. But the provisions create this
catch-22 only if “engaged in commerce” and “involving com-
merce” mean the same thing, and as we have already
Nos. 19-1564 & 19-2156 9
explained, the Supreme Court has squarely held that they do
not. Circuit City, 532 U.S. at 115. To repeat, while § 2 expands
the FAA’s reach to the full extent of Congress’s commerce
power, Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273–
77 (1995), § 1 carves out a narrow exception from the FAA for
a small number of workers who otherwise would fall within
§ 2’s ambit. Circuit City, 532 U.S. at 115–16, 118–19. There is
therefore nothing remarkable about an employment contract
failing to meet § 1’s more stringent “engaged in interstate
commerce” requirement while still meeting the far broader
“involving commerce” requirement of § 2. And given the
breadth of Congress’s Commerce Clause power, there can be
no doubt that the plaintiffs’ employment contracts fall com-
fortably within § 2.
***
Section 1 of the FAA carves out a narrow exception to the
obligation of federal courts to enforce arbitration agreements.
To show that they fall within this exception, the plaintiffs had
to demonstrate that the interstate movement of goods is a cen-
tral part of the job description of the class of workers to which
they belong. They did not even try do that, so both district
courts were right to conclude that the plaintiffs’ contracts
with Grubhub do not fall within § 1 of the FAA.
Accordingly, the judgments are AFFIRMED.