FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAN ORTIZ, an individual and on No. 23-55147
behalf of all others similarly situated,
D.C. No.
Plaintiff-Appellee, 5:22-cv-01399-
v. TJH-SHK
RANDSTAD INHOUSE SERVICES,
LLC, a Delaware limited liability OPINION
company; RANDSTAD NORTH
AMERICA, INC., a Delaware
corporation,
Defendants-Appellants,
and
XPO LOGISTICS, INC., a Delaware
corporation; XPO LOGISTICS, LLC,
a Delaware corporation; XPO
LOGISTICS SUPPLY CHAIN, INC.;
DOES, 1 through 50, inclusive,
Defendants.
2 ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC
ADAN ORTIZ, an individual and on No. 23-55149
behalf of all others similarly situated,
D.C. No.
Plaintiff-Appellee, 5:22-cv-01399-
TJH-SHK
v.
XPO LOGISTICS, INC., a Delaware
corporation; XPO LOGISTICS, LLC,
a Delaware corporation; XPO
LOGISTICS SUPPLY CHAIN, INC.,
Defendants-Appellants,
and
RANDSTAD INHOUSE SERVICES,
LLC, a Delaware limited liability
company; RANDSTAD NORTH
AMERICA, INC., a Delaware
corporation; DOES, 1 through 50,
inclusive,
Defendants.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC 3
Argued and Submitted December 4, 2023
Pasadena, California
Filed March 12, 2024
Before: Carlos T. Bea, Milan D. Smith, Jr., and Lawrence
VanDyke, Circuit Judges.
Opinion by Judge VanDyke
SUMMARY *
Arbitration
In this consolidated interlocutory appeal, the panel
affirmed in part the district court’s order denying appellants’
motion to compel arbitration, insofar as it concluded that the
transportation worker exemption precluded the application
of the Federal Arbitration Act (“FAA”) to the parties’
arbitration agreement.
Plaintiff sued his former employers, appellants Randstad
Inhouse Services, LLC, and GXO Logistics Supply Chain,
Inc., and appellants moved to compel arbitration pursuant to
an arbitration agreement in the employment
contract. During the pertinent period of employment,
plaintiff worked at a California warehouse facility operated
by GXO, which received Adidas watches, apparel, and shoes
from mostly international locations. The district court
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC
declined to compel arbitration. Appellants contend that the
arbitration agreement is enforceable under the FAA.
The panel held that plaintiff belonged to a class of
workers engaged in foreign or interstate commerce and was
therefore exempted from the FAA. The panel considered the
two-step analysis in Saxon v. Southwest Airlines Co., 596
U.S. 450, 455-59 (2022). Applying Saxon’s first step, the
panel considered plaintiff’s job description and held that the
district court properly concluded that plaintiff’s job duties
included exclusively warehouse work. Applying Saxon’s
second step, the panel upheld the district court’s conclusion
that plaintiff belonged to a class of workers who played a
direct and necessary role in the free flow of goods across
borders and actively engaged in the transportation of such
goods. Plaintiff’s job description met all the benchmarks
laid out in Saxon for plaintiff to qualify as an exempt
transportation worker.
The panel rejected appellants’ arguments to the
contrary. An employee is not categorically excluded from
the transportation worker exemption simply because he
performs duties on a purely local basis. Though plaintiff
moved goods only a short distance across the warehouse
floor and onto storage racks, he nevertheless moved them,
and with the direct purpose of facilitating their continued
travel through an interstate supply chain. Finally, the panel
held that an employee need not necessarily be employed by
an employer in the transportation industry to qualify for the
transportation worker exemption.
The panel addressed state law issues in a concurrently
filed memorandum disposition.
ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC 5
COUNSEL
Kiran A. Seldon (argued), Jessica C. Koenig, and Daniel C.
Whang, Seyfarth Shaw LLP, Los Angeles, California;
Timothy L. Johnson (argued), Jesse C. Ferrantella, and
Cameron O. Flynn, Ogletree Deakins Nash Smoak &
Stewart PC, San Diego, California; for Defendants-
Appellants.
Thomas A. Segal (argued), Chaim S. Setareh, and Farrah
Grant, Setareh Law Group, Beverly Hills, California, for
Plaintiff-Appellee.
OPINION
VANDYKE, Circuit Judge:
After several stints of temporary employment with
Randstad Inhouse Services, LLC, and GXO Logistics
Supply Chain, Inc., Adan Ortiz sued his former employers. 1
Pursuant to the arbitration agreement in Ortiz’s employment
contract, the employers moved to compel arbitration.
Though the agreement covers Ortiz’s claims, which
generally relate to the conditions of his employment, Ortiz
opposed arbitration on the grounds that the agreement cannot
1
Ortiz sued several entities affiliated with Randstad Inhouse Services
and several affiliated with GXO Logistics. At the time of his
employment, GXO Logistics operated as XPO Logistics, and many of
the affiliated entities retain the “XPO” label. This opinion refers to the
Randstad defendants collectively as “Randstad” and the XPO/GXO
defendants collectively as “GXO.” Where the distinction between the
two is immaterial, it refers to the defendants collectively as “the
employers.”
6 ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC
be enforced under either federal or state law. The district
court agreed with Ortiz and declined to compel arbitration.
In this consolidated interlocutory appeal, the employers
contend that the agreement is enforceable under the Federal
Arbitration Act (“FAA”) because Ortiz does not qualify for
the FAA’s transportation worker exemption. See 9 U.S.C.
§ 1. In the event the FAA does not apply, the employers
argue that the agreement contemplates using state
substantive law of arbitrability (here, California’s) as an
alternative means of enforcement. This opinion addresses
only the applicability of the FAA. 2
To determine whether the FAA applies, we must decide
whether Ortiz belonged to a “class of workers engaged in
foreign or interstate commerce,” 9 U.S.C. § 1, since such
workers are exempted from the FAA. Id. Because we
conclude that Ortiz is an exempt transportation worker, we
affirm the district court’s order insofar as it concluded that
the FAA provides no basis to enforce the parties’ arbitration
agreement.
I.
Randstad is a staffing company. It hired Adan Ortiz
three times: first from October 2011 to June 2013, again
from August 2020 to February 2021, and finally from
October to November 2021. During the second stint—the
pertinent period of employment for present purposes—he
worked at a California warehouse facility operated by GXO.
2
We address the state law issues—including (1) whether this court has
interlocutory jurisdiction to decide whether state law applies on an
alternative basis and (2) if so, whether the parties’ agreement provides
for such alternative enforcement—in a concurrently filed memorandum
disposition.
ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC 7
GXO operates warehouse and distribution facilities for
Adidas. The warehouse where Ortiz worked receives
Adidas watches, apparel, and shoes from mostly
international locations, including Asia, South America, and
Central America. Products remain at the warehouse for
anywhere from several days to a few weeks, after which they
are shipped to end-use consumers and retailers in a variety
of states.
GXO’s role in the international supply chain for Adidas
products is small but important. It receives and stores
Adidas products after they arrive from international
suppliers, then processes and prepares them for further
distribution across state lines. GXO does not move Adidas
products to or from its warehouse. Nor, as explained below,
are GXO employees with Ortiz’s job description responsible
for unloading the products once they arrive or loading them
when they are scheduled for departure. Those tasks—like
every other step in the Adidas supply chain—are handled by
other employees or entities.
Ortiz was employed by GXO as a “PIT / Equipment
Operator.” He described his duties as follows:
(1) “unloading and picking up the packages and transporting
them to the warehouse racks to organize them,”
(2) “transport[ing] the packages to the picking section of the
warehouse,” (3) “assisting Pickers in obtaining packages so
they could be shipped out,” and (4) “assist[ing] the Outflow
Department to prepare packages to leave the warehouse for
their final destination.”
It is not entirely clear what Ortiz meant by “unloading …
the packages.” GXO, for its part, asserted that PIT /
Equipment Operators are not responsible for unloading
products from shipping containers after they arrive at the
8 ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC
warehouse. “By the time the PIT / Equipment Operator
handles Adidas products,” a GXO employee familiar with
the process explained, “they have already … been unloaded
at the [warehouse] by someone other than the PIT /
Equipment Operator.” Finding the record ambiguous as to
whether Ortiz loaded or unloaded packages from shipping
containers or not, the district court assumed for the sake of
its analysis that Ortiz did not do so. We do the same.
When Ortiz was hired to work for GXO, he signed an
arbitration agreement with Randstad. GXO was expressly
designated as an intended third-party beneficiary of the
agreement as a Randstad client to whom Ortiz “provide[d]
services on assignment.” The agreement applied to all
claims “relat[ing] to [Ortiz’s] recruitment, hire,
employment, client assignments and/or termination
including, but not limited to, those concerning wages or
compensation, consumer reports, benefits, contracts,
discrimination, harassment, retaliation, leaves of absence or
accommodation for a disability.” Finally, the agreement’s
choice-of-law clause expressed a preference for enforcement
under the FAA, noting that the agreement “shall be governed
by the Federal Arbitration Act” and that it “may be enforced
… otherwise pursuant to the FAA.”
Notwithstanding the arbitration agreement, Ortiz filed a
class action in California state court in March 2022. The
complaint alleges various violations of California labor law,
all of which are covered by the broad language of the
arbitration agreement. Randstad timely removed the case to
federal court and filed a motion to compel arbitration, which
GXO joined.
The district court declined to compel arbitration.
Relying on the Supreme Court’s decision in Southwest
ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC 9
Airlines Co. v. Saxon, 596 U.S. 450 (2022), and this court’s
opinion in Rittmann v. Amazon.com, Inc., 971 F.3d 904 (9th
Cir. 2020), it concluded that the FAA did not apply because
Ortiz qualified as an exempt “transportation worker.” 3
Randstad and GXO each filed separate interlocutory appeals,
which were briefed and argued on a consolidated basis.
II.
We have jurisdiction over the interlocutory appeal of an
order denying a motion to compel arbitration pursuant to the
FAA under 9 U.S.C. § 16(a)(1)(B). Rittmann, 971 F.3d at
909. Our review is de novo. Id.
III.
The FAA, which was enacted in “hostility of American
courts to the enforcement of arbitration agreements,”
“compels judicial enforcement of a wide range of written
arbitration agreements.” Circuit City Stores v. Adams, 532
U.S. 105, 111 (2001). Though the FAA’s pro-arbitration
mandate is broad, its reach is not universal. Section 1, for
example, exempts the “contracts of employment of seamen,
railroad employees, or any other class of workers engaged in
foreign or interstate commerce.” 9 U.S.C. § 1. In keeping
with the FAA’s policy favoring arbitration, the Supreme
Court has construed the residual clause in § 1 narrowly,
applying it only to “contracts of employment of
transportation workers.” Circuit City, 532 U.S. at 119.
After Circuit City, questions remained about what an
employee’s job description must entail for that employee to
3
It then concluded that the contract was ambiguous as to whether state
law might apply in the alternative and construed that ambiguity against
Randstad, the drafter. As noted above, we address that holding and
related issues in a concurrently filed memorandum disposition.
10 ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC
qualify as an exempt “transportation worker.” See, e.g.,
Rittmann, 971 F.3d at 909 (considering whether an
intrastate, last-mile delivery driver qualified as an exempt
transportation worker). Especially considering the FAA’s
admonition that employees must be “engaged in foreign or
interstate commerce” to qualify for the exemption, 9 U.S.C.
§ 1, employees like Ortiz, who do not transport products
across great distances and interact with interstate commerce
on a purely local basis, present a particularly difficult
interpretive issue.
Fortunately, the Supreme Court recently confronted such
a case in Saxon v. Southwest Airlines Co. Saxon worked for
Southwest Airlines as a ramp supervisor. Saxon, 596 U.S. at
453. Like Ortiz, she did not cross state lines or transport
goods across significant distances, and she played only a
localized, supporting role in interstate commerce. Id. at 454,
462–63. To determine whether Saxon nevertheless qualified
as an exempt transportation worker, the Court engaged in a
two-step analysis. Id. at 455–59. First, the Court “defin[ed]
the relevant ‘class of workers’ to which Saxon belong[ed].”
Id. at 455. Then, it “determine[d] whether that class of
workers is ‘engaged in foreign or interstate commerce.’” Id.
At the first step, the Court considered Saxon’s job
description, which included “load[ing] and unload[ing]
baggage, airmail, and commercial cargo on and off airplanes
that travel across the country.” Id. at 453; see id. at 456. In
defining Saxon’s class of workers, the Court considered the
specific nature of her work, not her employer’s status as a
transportation company more generally. Id. at 456.
Eschewing an “industrywide approach,” it directed its
“attention to ‘the performance of work’” itself. Id. (quoting
New Prime Inc. v. Oliveira, 139 S. Ct. 532, 541 (2019)).
With that standard in mind, the Court concluded that Saxon
ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC 11
“belong[ed] to a class of workers who physically load and
unload cargo on and off airplanes on a frequent basis.” Id.
At the second step, the Court disclaimed any strict
requirement that a worker must personally transport goods
interstate to qualify as a transportation worker. See id. at 457
(quoting Balt. & Ohio Sw. R. Co. v. Burtch, 263 U.S. 540,
544 (1924)) (considering it “too plain to require discussion
that the loading or unloading of an interstate shipment by the
employees of a carrier is so closely related to interstate
transportation as to be practically a part of it”). It then laid
out a series of closely related standards detailing the required
relationship between the class of workers and interstate
commerce. First, “any such worker must at least play a
direct and ‘necessary role in the free flow of goods’ across
borders.” Id. at 458 (quoting Circuit City, 532 U.S. at 121).
Second, and “[p]ut another way,” they must be “actively
‘engaged in transportation’ of those goods across borders via
the channels of foreign or interstate commerce.” Id. Finally,
workers who are “intimately involved with the commerce
(e.g., transportation) of th[e] cargo” also qualify. Id.
Equally instructive are the categorical standards that
Saxon declined to adopt. On one hand, the Court rejected
Saxon’s position that “virtually all employees of major
transportation providers” are exempt. Id. at 461. On the
other, it rejected Southwest’s view that the provision applies
only to “workers who physically move goods or people
across foreign or international boundaries.” Id. at 461–63.
Though the Court’s different formulations of the test—
direct and necessary, active engagement, and intimate
involvement—all vary slightly, Saxon’s bottom line is that
to qualify as a transportation worker, an employee’s
relationship to the movement of goods must be sufficiently
12 ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC
close enough to conclude that his work plays a tangible and
meaningful role in their progress through the channels of
interstate commerce. Ultimately, the Court held that Saxon
met the interrelated standards it had just pronounced because
“when she is ‘doing the work of unloading’ or loading cargo
from a vehicle carrying goods in interstate transit,” “there
could be no doubt that interstate transportation is still in
progress,’ and that [Saxon] is engaged in that
transportation.’” Id. at 458–59 (quoting Erie R. Co. v.
Shuart, 250 U.S. 465, 468 (1919)) (cleaned up). If the same
can be said of Ortiz, then under Saxon, he too qualifies as an
exempt transportation worker.
Saxon “recognize[d] that the answer will not always be
so plain when the class of workers carries out duties further
removed from the channels of interstate commerce or the
actual crossing of borders.” Id. at 457 n.2. In recent years,
this court has dealt with at least three such cases: Rittmann,
971 F.3d 904; Capriole v. Uber Technologies, Inc., 7 F.4th
854 (9th Cir. 2021); and Carmona Mendoza v. Domino’s
Pizza, LLC, 73 F.4th 1135 (2023), petition for cert. filed
(U.S. Oct. 23, 2023) (No. 23-427). Unsurprisingly, the
parties heavily engage with these cases in their briefs, and
we consider each in turn.
In Rittmann, the court considered whether so-called “last
mile” Amazon delivery drivers—contractors who deliver
packages from a warehouse to end-use consumers on a
predominantly intrastate basis—qualified for the exemption.
971 F.3d at 907. The panel concluded that they did,
reasoning that workers may be “engaged in the movement of
goods in interstate commerce, even if they do not cross state
ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC 13
lines,” id. at 915, because they “complete the delivery of
goods that Amazon ships across state lines,” id. at 917. 4
Rittmann was decided before Saxon, and Saxon cites
Rittmann as an example of a case in which the “answer will
not always be so plain” because the workers in Rittmann
were “further removed from … the actual crossing of
borders.” 596 U.S. at 457 n.2.
Carmona Mendoza, which followed Rittmann, was also
decided for the first time before Saxon, but the Supreme
Court vacated and remanded the first opinion in Carmona
Mendoza for reconsideration in light of Saxon. See Carmona
Mendoza, 73 F.4th at 1136 (detailing the appellate history).
On remand, the panel in Carmona Mendoza again followed
Rittmann, holding that “Saxon is not inconsistent, let alone
clearly irreconcilable, with Rittmann, which continues to
control [the] analysis.” Id. at 1138–39. Therefore, it
reaffirmed its prior conclusion that delivery drivers who
make last-mile deliveries of pizza ingredients from
Domino’s supply centers to its franchisees’ retail stores were
exempt transportation workers. Id.
As Saxon notes, the questions raised by cases like
Rittmann and Carmona Mendoza, which involved purely
intrastate shipment of goods to the terminus of a supply
chain, have not yet been settled by the Supreme Court, and
the courts of appeals have reached different conclusions. In
4
Next came Capriole, a case involving Uber drivers, which approved of
Rittmann’s analysis but distinguished its facts. 7 F.4th at 861 n.7. In
Capriole, the court concluded that, unlike Amazon’s last-mile delivery
drivers, Uber drivers are not participants in “a single, unbroken stream
of interstate commerce.” Id. at 866–67 (“Uber stalwartly objects to any
notion that interstate transportation is intrinsic to its service, and
Plaintiffs have proffered no evidence undermining Uber’s position.”).
14 ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC
Lopez v. Cintas Corp., for example, the Fifth Circuit
considered whether local Cintas delivery drivers who pick
up uniforms and deliver them to local customers fall under
§ 1’s exemption. 47 F.4th 428, 430–32 (5th Cir. 2022)
(citing Rittmann, 971 F.3d at 915–19). The Fifth Circuit said
no, concluding that even though uniforms were sourced from
out-of-state locations, “[o]nce the goods arrived at the
Houston warehouse and were unloaded, anyone interacting
with those goods was no longer engaged in interstate
commerce.” Id. at 433. And in Hamrick v. Partsfleet, LLC,
the Eleventh Circuit reached the same conclusion as the
Fifth, though it remanded the case to the district court to
reconsider the issue using the correct standard. 1 F.4th 1337,
1351–52 (11th Cir. 2021) (“The district court concluded that
the drivers fell within the transportation worker exemption
because the goods at issue in this case originated in interstate
commerce and were delivered, untransformed, to their
destination. … This was error.”) (cleaned up).
But unlike Rittmann, Carmona Mendoza, Lopez, or
Hamrick, this case does not concern last-mile delivery
drivers. It presents no thorny questions about when the
interstate transport of goods ends and the purely intrastate
transport of the same goods begins. Nor does it involve an
employee who handles goods at or near the logistical end of
an interstate or international supply chain. Rather, as the
following review of the district court’s two-part Saxon
analysis demonstrates, this case tracks Saxon in every
important respect.
Regarding Saxon’s first step, the district court concluded
that Ortiz’s job duties included exclusively warehouse work:
transporting packages to and from storage racks, helping
other employees in obtaining packages so they could be
shipped, and assisting the Outflow Department to prepare
ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC 15
packages for their subsequent shipment. It rightly assumed
that Ortiz was not involved in unloading shipping containers
upon their arrival or loading them into trucks when they left
the warehouse. It then properly defined Ortiz’s class of
workers by reference to his job description, as Saxon
commands, and entirely without reference to GXO’s line of
business. The district court did not err at the first step.
And as to Saxon’s second step, the district court correctly
concluded that Ortiz’s class of workers “play[ed] a direct
and ‘necessary role in the free flow of goods’ across borders”
and “actively ‘engaged in transportation’” of such goods.
Saxon, 596 U.S. at 458 (quoting Circuit City, 532 U.S. at
121). Like Saxon, Ortiz handled Adidas products near the
very heart of their supply chain. In each case, the relevant
goods were still moving in interstate commerce when the
employee interacted with them, and each employee played a
necessary part in facilitating their continued movement.
For these reasons, Ortiz’s job description meets all three
benchmarks laid out in Saxon. Both Ortiz and Saxon
fulfilled an admittedly small but nevertheless “direct and
necessary” role in the interstate commerce of goods: Saxon
ensured that baggage would reach its final destination by
taking it on and off planes, while Ortiz ensured that goods
would reach their final destination by processing and storing
them while they awaited further interstate transport.
Both were also “actively engaged” and “intimately
involved with” transportation: Saxon handled goods as they
journeyed from terminal to plane, plane to plane, or plane to
terminal, while Ortiz handled them as they went through the
process of entering, temporarily occupying, and
subsequently leaving the warehouse—a necessary step in
their ongoing interstate journey to their final destination. Id.
16 ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC
Both were actively engaged in the interstate commerce of
goods. If Saxon is an exempt transportation worker, Ortiz
is, too.
IV.
In response, the employers make multiple attempts to
isolate Ortiz’s job description from any discernable
connection to the interstate transportation process. First, the
employers emphasize Ortiz’s purely intrastate role as a
warehouse worker, noting that he did not move goods
anywhere but within the facility and did not load or unload
them as they were transported to and from the facility. In
their view, because Ortiz performed his duties on an entirely
intrastate basis, his role did not relate to interstate
transportation in any meaningful sense.
The employers are incorrect. If Saxon stands for
anything, it is that an employee is not categorically excluded
from the transportation worker exemption simply because he
performs his duties on a purely local basis. In Saxon, the
plaintiff’s job description was physically confined to
Chicago’s Midway International Airport. 596 U.S. at 454.
But that did not preclude the Court from concluding that she
was sufficiently connected to interstate commerce. Id. at
463. Saxon is clear on this issue: what matters is not the
worker’s geography, but his work’s connection with—and
relevance to—the interstate flow of goods. Id. at 458.
To further illustrate this point, consider the following
historical example. In late 1860, the short-lived but
nationally famous Pony Express hit full stride. Nevada, with
its 47 waystations and 417 miles of trail, sat right in the heart
of the route. At maximum, riders rode the trail for 100 miles
per shift, meaning that on average, at least five riders were
needed to cross Nevada alone. Even though some of these
ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC 17
riders would have crossed Nevada’s territorial boundaries
and others would not, all of them performed the same task
(carrying the mail) using the same means (a horse) along the
same route. There is no meaningful distinction between the
interstate and intrastate riders, all of whom were “actively
engaged in,” “intimately involved with,” and “play[ed] a
direct and necessary role” in transporting interstate the very
same letters from east to west. 5 Saxon, 596 U.S. at 458. The
mere fact that some riders’ routes were confined entirely
within Nevada’s borders does not divorce their role from the
task of interstate transportation, and concluding otherwise
requires willful blindness to the broader supply chain. So
too here. Ortiz is perfectly capable of participating in the
interstate supply chain for Adidas products even though he
fulfills his role entirely within one state’s borders.
Second—and returning to our era of planes, trains, and
automobiles—the employers argue that Ortiz’s role is
insufficiently connected to interstate transportation because
he did not transport the goods across any appreciable
distance. But Saxon forecloses this argument, too. As a
baggage handler, Saxon carried airport baggage over only a
relatively small distance as she unloaded it from the plane
and onto the tarmac (or vice versa). Saxon, 596 U.S. at 454.
The basic fact that Saxon moved the bags across only a small
distance does not change that she moved the baggage as part
of its interstate travel. Movement over a short distance is
movement nonetheless. And more importantly, the distance
also does not affect the nature of the task or its inherent
connection to interstate commerce. Without airport tarmac
5
These historical facts were sourced from the National Pony Express
Association and are available online at
https://nationalponyexpress.org/historic-pony-express-trail/stations/.
18 ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC
staff to load and unload cargo, bags would not make it on or
off planes, and the interstate commerce of baggage would
immediately grind to a halt.
The same is true of employees like Ortiz who move
Adidas products around GXO’s warehouse. Though Ortiz
moved goods only a short distance across the warehouse
floor and onto and off of storage racks, he nevertheless
moved them. And not only did he move them, he did so with
the direct purpose of facilitating their continued travel
through an interstate supply chain. Without employees like
Ortiz, Adidas products that arrived at GXO’s warehouse
would not be properly processed, organized, stored, or
prepared for the next leg of their interstate journey. Indeed,
as GXO itself readily admits, although its employees do not
actively transport Adidas products themselves, its
warehouses act as intermediary “warehouse and distribution
facilities” where products are “receive[d],” “store[d],” and
“processe[d]” for further “distribution to businesses or end
consumers” in other states. That process—and Ortiz’s
undisputed role in directly facilitating it—is a necessary step
in an unbroken foreign and interstate supply chain for
Adidas products.
Third, the employers correctly note that not every
connection to commerce will suffice, no matter how tenuous
the connection may be. See id. at 462 (quoting Gulf Oil
Corp. v. Copp Paving Co., Inc., 419 U.S. 186, 198 (1974))
(“Being only ‘perceptibly connected to … instrumentalities’
of interstate commerce [i]s not enough.”). It is true that Ortiz
did not perform stereotypical transportation work, like
driving a semi-truck or flying a freight plane. But this fact—
true though it may be—does not end our analysis. As Saxon
has made clear, the exemption is not limited to only those
who themselves actually transport goods across state
ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC 19
boundaries. And in cases where courts have found an
insufficiently close relationship, the employee’s job
description was much further removed from physically
handling the goods than Ortiz was here.
For example, the employers cite a case involving a
security guard who worked at a train station. Cole v. Burns
Int’l Sec. Servs., 105 F.3d 1465 (D.C. Cir. 1997). And in
Saxon, Southwest cited a case involving janitorial services.
United States v. Am. Bldg. Maint. Indus., 422 U.S. 271
(1975). See 596 U.S. at 462. But nothing about the work
conducted by security guards or janitors is intrinsically
connected to interstate commerce. As important as their jobs
may be, neither physically handles goods or contributes
directly to the flow of goods in interstate commerce. Even
security guards and janitors whose employment with a
transportation company creates a coincidental relationship to
interstate commerce have nowhere near the connection to the
actual transportation of goods that Ortiz had. Under Saxon,
our focus is on “the performance of work,” not the remote
incidental relationships created by employment with a
certain type of company. Id. at 456 (quoting New Prime, 139
S. Ct. at 541).
Fourth, the employers contend that this court may
conclude that Ortiz is a transportation worker only if it
improperly shifts its focus away from Ortiz’s work and on to
the goods themselves. This argument reveals the extent to
which the employers underappreciate how observations
about the broader supply chain should inform the court’s
view of the work performed by the relevant class of
employees. The Supreme Court in Saxon did not improperly
shift its focus away from Saxon’s work by accounting for the
inescapable fact that her job required her to handle goods
that were currently in interstate commerce. Rather, the
20 ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC
Court could only understand the extent to which Saxon
contributed to the interstate commerce of baggage after it
understood that Saxon’s job, though performed on a purely
local basis, involved handling bags as they traveled
interstate. Id. at 463.
Nor, as the employers contend, does this mode of
analysis necessarily transform Saxon’s standard into a “flow
of commerce” test. Done properly, the analysis focuses not
on the flow of goods themselves but on the employee’s
relationship with the flow of goods and the extent to which
his role enables them to flow in interstate commerce. That
inevitably requires an examination of the employee’s role in
context. Unsurprisingly, such context usually involves an
understanding of how, when, and where goods move through
the supply chain. But as demonstrated above, the flow of
goods is hardly the only or even the primary consideration.
The crux of the court’s analysis remains the work
accomplished.
Fifth and finally, the employers suggest that the nature
of GXO’s business—warehousing, not transportation—is
further evidence that Ortiz is not a transportation worker.
While the employers concede that Saxon rejects an
“industrywide approach” when determining the class of
workers to which a plaintiff belongs, id. at 456, they contend
that rejection is limited to the first step, leaving parties free
to rely on the employer’s industry at the second step.
In support of this argument, the employers rely on two
out-of-circuit decisions: Hamrick, 1 F.4th 1337, and
Bissonnette v. LePage Bakeries Park Street, LLC, 49 F.4th
655 (2d Cir. 2022), cert. granted --- S. Ct. ----, 2023 WL
6319660 (Sept. 29, 2023). While Hamrick was decided
before Saxon and Bissonnette was decided after it, both
ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC 21
relied on the same categorical rule: only workers employed
in the transportation industry qualify for the transportation
worker exemption. Hamrick, 1 F.4th at 1349 (“The
transportation worker exemption applies if the employee is
part of a class of workers: (1) employed in the transportation
industry; and (2) that, in the main, actually engages in
foreign or interstate commerce.”); Bissonnette, 49 F.4th at
660 (“[T]he FAA exclusion is limited to workers involved in
the transportation industry….”).
Bissonnette, for example, involved truckers who
delivered bread and other baked goods produced by Flower
Foods, Inc., and its subsidiary bakeries. 49 F.4th at 657.
Plaintiffs, who possessed distribution rights within the state
of Connecticut, “pick[ed] up the baked goods from local
Connecticut warehouses and deliver[ed] the goods to stores
and restaurants within their assigned territories.” Id. at 658.
Nevertheless, the Second Circuit concluded that the
transportation worker exemption did not apply to the
plaintiffs “even though they drive trucks, because they are in
the bakery industry, not a transportation industry.” Id. at
657.
To the extent that the employers advance a similar
categorical approach here, we find Bissonnette hard to
square with Saxon’s reasoning. To begin, we are
unconvinced that Saxon’s rejection of an industrywide
approach applied only to the first step of the analysis. After
all, the Court explicitly “reject[ed] Saxon’s argument that
§ 1 exempts virtually all employees of major transportation
providers,” suggesting the Court’s skepticism to an
industrywide approach pervaded its entire analysis, not just
its consideration of the relevant class of workers. 596 U.S.
at 461.
22 ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC
And even assuming the employers are correct that,
technically speaking, Saxon forbade such reasoning only at
the first step, they ignore the reason why the employer’s
industry is irrelevant to properly defining the class of
workers. Again, Saxon’s guiding principle is that courts
should focus on the work employees perform, not the
industry employers occupy. That principle applies as
equally to Saxon’s second step as it does to its first. 6
Saxon’s reasoning in this regard is consistent with the
fundamental reality that within any given company, different
classes of employees often have markedly different roles.
That is true even if an employer is situated comfortably
within one industry. For example, under Saxon, a janitor
would not qualify as a transportation worker even if he was
employed by Southwest Airlines because his role is not
direct or necessary to, actively engaged in, or intimately
involved with transportation. See id. at 460–62. On the
other hand, a truck driver employed by a bakery or a
temporary employee employed by a warehousing company
might qualify despite the overarching nature of their
employers’ business because their particular job descriptions
meet the standards laid out in Saxon. For these reasons, we
conclude that an employee need not necessarily be employed
6
As GXO correctly notes, Saxon did not decide whether a plaintiff’s
employment outside the transportation industry was fatal to his claim
“because there the plaintiff worked for an airline.” Bissonnette, 49 F.4th
at 661. The Supreme Court has recently granted certiorari in Bissonnette,
presumably to answer this exact question. The question presented is as
follows: “To be exempt from the Federal Arbitration Act, must a class
of workers that is actively engaged in interstate transportation also be
employed by a company in the transportation industry?” Petition for
Writ of Certiorari at i, Bissonnette v. LePage Bakeries Park St., LLC, No.
23-51 (July 17, 2023), 2023 WL 4680058.
ORTIZ V. RANDSTAD INHOUSE SERVICES, LLC 23
by an employer in the transportation industry to qualify for
the transportation worker exemption. 7
***
At bottom, the employers cannot overcome the fact that
§ 1 “directs the interpreter’s attention to the performance of
work.” Id. at 456 (internal quotations omitted). When, as
Saxon commands, we consider the nature of the work
performed by Ortiz’s class of employees, we conclude that
his role is “direct and necessary” to, “actively engaged in,”
and “intimately involved with” the interstate commerce of
Adidas products. See id. at 458 (internal quotations
omitted). None of the employers’ contrary arguments
compel a different conclusion. As such, the district court
was correct to conclude that Ortiz qualifies for the FAA’s
transportation worker exemption, 9 U.S.C. § 1, and the
parties’ arbitration agreement cannot be enforced under the
FAA.
V.
For these reasons, the district court’s order denying
appellants’ motion to compel arbitration is AFFIRMED IN
PART, insofar as it concluded that the transportation worker
exemption precludes the application of the FAA to the
parties’ agreement.
7
For the same reasons, appellants’ motion to stay appellate proceedings
(in 23-55147, ECF No. 34, and in 23-55149, ECF No. 32) pending the
Supreme Court’s decision in Bissonnette and its disposition of the
petition for certiorari in Carmona Mendoza is DENIED.