Legal Case Summary

We'll hear argument next in case 17340, new prime versus Oliviara. Mr. Butros? Mr. Chief Justice, and may it please the Court. The first circuit held at independent contractor agreements are contracts of employment, and therefore they were exempt from the Federal Arbitration Act. This reading of Section 1's exemption is contrary to the plain meaning of the statute and its structure, purpose, history, and context. This Court for many years, going back to before when the Federal Arbitration Act was enacted, has said over and over again that if Congress uses words like employment or employee or employer in a statute without further helpful definition, it intends for the common law agency rules to govern, the govern an employer and employee relationship. In the Section 1 exemption, Congress did not define or suggest it was coming up with a new creative interpretation of the word employment or employees, which is also used in that clause. The first circuit is just about the word worker in the very clause. Shall apply to contracts of employment of Seaman railroad employees or any other class of workers engage in foreign or interstate commerce. Congress didn't use the word employees if it meant employees. It used a much broader term, workers. But it shouldn't that inform what it meant by contract of employment? I think it does, Your Honor, it's a contract of employment of a worker. So if the worker had a different type of contract, a contract that's an independent contractor agreement would fall squarely outside statute. It's a statute. It should apply to any other class of workers, not employees. It used a much broader term. But it, Your Honor, it's a residual clause that follows contracts of employment of any other class of worker. So what we're trying to decide is what employment contract of employment means. And if it meant only employees, Congress naturally, I would assume, would have used the word any other class of employees, but instead it chose a much broader word, workers. Well, Your Honor, I think as we have argued, the fact that the railroad employees is also, is mentioned right before that, Seaman, which are traditionally common law master servant employees, demonstrates that- Under the Seaman Act, it covered people who were not contracts of Seaman are not just people who are employees. It also is the tugboat operator who's on the boat guiding it

. It's other people who are not simply employees. But Congress just five years earlier in the Jones Act defined Seaman under the Jones Act as actions in the course of their employment and as employees, this Court's Chandras decision also uses the common law definition of substantial connection. What makes you make of the other side that says in the Seaman category, the, this ship surgeon, the pilot qualify as Seaman who are outside the Federal Optration Act, even though they're independent contractors, not common law employees? Justice Ginsburg, I think the physician example is a good one. The case that has been cited by the Respondent didn't involve the question of independent contractor or anything like that. It was the question was, could the Captain basically override the Hippocratic oath in terms of the physician exercising his independent judgment? And I don't think the Court has to determine whether every Seaman and is it was, is an employee or not, the question is whether they had a contract of employment. And under this Court's decision in Circuit City, the Court emphasized that the exemption to the Federal Arbitration Act for contracts of employment should be given a narrow construction and a precise reading in order to further the Pro-Arbitration Policies of the Federal Arbitration Act. Well, now in the sense that it was limited to transportation workers. In that case, yes, Your Honor. That was the issue. But the overall thrust on page 120 to 121 of Circuit City, the Court in talking about Seaman, railroad employees, air carrier, the air carrier employees were added to the Railway Labor Act in 1935, I believe. This Court said over and over again, these were employment relationships, talked about the relationship between employees and employers. So this Court in Circuit City was clearly contemplating exactly what the statute says, that a contract of employment is a contract of employment. It's not an independent contractor agreement. Well, you keep in your brief, and the other side raises this concern. You quickly shift the discussion of contract of employment to whether or not there's an employee-employer relationship. And simply because someone would be considered or not considered an employee, doesn't necessarily answer the question of whether it's a contract of employment. People think naturally of employing an independent contractor. So I don't know why the question is not employee employer, its employment. An employment in many of these contacts has a broader scope than the existence of an employee-employer relationship. It's absolutely true that there are many different definitions of employment out there. But as I said, if the Court's decision in National Mutual Insurance Company versus Darden, which we've cited, and in the community for Creative Non-Violence versus Reed case, which Darden cites, says that Congress, we're going to assume that a common Congress uses employee in Darden, but in Reed, the Court used employment

. And said when those terms are used by Congress, we assume Congress intended for the ordinary terms to be used. And here, except the problem is that we don't really assume that because the other side has prevented us, presented us with multiple cases, many of them, in which we use contract of employment to mean employees and independent contractors. It's all contextual, isn't it? Not really, or are most of the cases the vast? I'll give them this. They did a good job of cataloging haphazard in passing uses of contract of employment where it wasn't an issue. So in describing a case about an attorney and a client a court years ago called it a contract of employment. Well, what do we do about the fact that less haphazard that your colleague on the other side has documented that back in 1925, which is when the statute was enacted. And I think you agree that we have to interpret it as a reasonable reader would of at that time. It didn't necessarily distinguish between independent contractors and employees with the degree of care law has subsequently come to use. And maybe even that your own client doesn't use, according to its website, and it speaks of employing, I believe. I can't remember the exact variation of the word, but treats these independent contractors as employing them. So what do we do about the fact that that is at least an available reading still today and that there's a lot of historical evidence at the time of the statute in question that contract of employment may have swept more broadly? A couple things, Justice Gorsuch. First, I don't agree with the respondent that the independent contractor, contract of employment distinction was not well established. It was deeply embedded. This court's decision in the copage case, which we cited in our reply brief, specifically rhetorically, acts as if everyone would know the but this distinction. We cited the Connington Treatise from 1920. It had an entire chapter called Contracts of Employment, and it made the explicit distinction, and this court has over the years cited Mr. Connington in its cases, that contracts of employment were different than independent contractor agreements. What other treatises didn't? We cited another treatise, Your Honor. But you're not denying other treatises, didn't treat them differently. Well, they didn't really, to the extent they addressed the issue, the distinction was well established, Your Honor. Again, responded to his side at a lot of authorities where it just wasn't a discussion or an issue

. And the need for a narrow construction of Section 1, in order to further the pro-arbitration policies of the act, plus the presumption that Congress meant what it said when it said employment. That means even if we come to a draw, or even if they come up with some other authorities, the background presumption is that Congress meant contract of employment. And I think it's also important that it's been nearly 100 years, and no court had ever decided that the words Contracts of Employment, which are pretty clear, mean something completely different. The first circuit and the Mr. Olivera, contend that those words mean agreement to work. But if Congress, just so-to-meow-it-wanted to say agreement to work, it could have said that. It said Contracts of Employment. So I think it's just very clear from the language of the statute that Congress intended traditional employment agreements to be the subject of the exemption. Could you address the gateway question? Who decides this? You're on, we believe that the court's cases like renta center and first options that talk about whether you have a valid delegation clause in the first instance, the issue goes to the arbitrator because the parties agreed to arbitrate issues concerning what's arbitral. And that's what this is. We admit we concede that it's a bit different than some of the court's cases, so the Kindred Nurseries case that rule, where the Court ruled that the Federal Obitation Act did apply to a contract when there was a dispute about formation, and the party there had argued that because there was a dispute as to whether an agreement was formed, the FAA hadn't been triggered. But if Section 1 puts an entire category, even if you say it's an arrow category, outside the Obitation Act entirely, it's exempt from the Federal Obitation Act. And how can you use the Obitation Act? The delegation clause would never come into play because if we mentioned fit the description contracts of employment, there outside the Federal Obitation Act, you can't use the Act to enforce any obitration. Yes, Your Honor, that's Respondents' argument, and I recognize it is a bit different than Kindred Nurseries, but it's very similar in the sense that the party there was arguing that the Federal Obitation Act isn't triggered because the agreements invalid from the get go. But the main point I would like to make on this issue about delegation is we trust the courts, too. Our main concern about what the district court did originally was to rule that correct, first ruled correctly, this was not a contract of employment, so that that issue needed to be looked at. But then the court said there would be discovery and then a trial to determine whether the exemption applied. And we respectfully submit that the proc, if a court, whoever decides this, an arbitrator or a court, it should be done based on the four corners of the contract and based on whether it's a contract of employment or an independent contract. I feel like the trial and all was supposed to be determined whether this was an independent contractor and therefore outside the Section 1 exemption. Exactly, Your Honor. And our point is that's the really merits of the case

. The Mr. Olivera's argument is that in actual fact, he was an employee. And the way the relationship in practice functioned. So that's the merits. So if we're required to have a trial in Federal District Court about that issue and if new prime prevails and it's determined that he's actually an independent contractor, the right to arbitrate that issue would have basically been defeated. Mr. Boutrus, you've moved nicely to the merits, but just so we haven't ignored that where we've moved so quickly in response to Justice Ginsburg's question. And I share the same concern so perhaps you can help me. Before a court can do anything, issue an order under Section 4 compelling arbitration. That's what you want. As an order from the District Court compelling arbitration, I would have thought it would have had to satisfy itself and had the power to issue such an order. And Section 1 has this carve out. And why isn't it more like a challenge to the delegation provision itself if you don't want to use Rent a Center as your authorities, I believe you do, rather than a challenge to the underlying contract. If we're going to make an analogy, I would have thought the analogy would have worked the other way. Help me. I think, Your Honor, I have to say that is another analogy and it's one that it's another way the court could go. But here, the presumption has kind of been flipped on us. We have an agreement that was in commerce, everyone agrees with that. It's not a contract of employment. It's an independent contractor agreement. On the face of the Federal Arbitration Act, the District Court had jurisdiction

. The plaint, Mr. Palavera is asking for an exception. We agreed that if we had a dispute over an issue, any issue arising from the agreement, it would go to an arbitrator. And so it's not a question of jurisdiction. The Federal District Court, I think, had the power, inherent power to stay or in specific order specific performance of an agreement aside from the Federal Arbitration Act. But I do recognize that we're asking on that issue for the Court to take another step. And pivoting back to the merits, on that point, it's the respondent who's asking for an upheaval. Basically, they argue that every word in the exemption is a surprise word. Contract means agreement. Employment means work or business of any kind. Seaman means everything. And in the Wisconsin Central case from last term, where the question was, what does money mean? The Court said the government had made a decent case that money could be interpreted in more broadly. But that wasn't the ordinary usage. And the Court said, does money, is it really ordinary to say money means everything? Here, Mr. Palavera is basically arguing that contract of employment means every type of work or money. Well, but just saying that the arbitrator will decide arbitrability. There are different degrees of arbitrability. It's one thing to say, for example, if you have an agreement, we'll arbitrate all disputes on the plant floor. And then the company builds another extension of it and the question is whether it applies there. That's sort of within the four corners of the arbitration agreement. But if the issue is, does the Act apply at all? That seems to be on a different order of magnitude

. And it seems quite another thing to say that the arbitrator gets to decide whether a Court can decide our compel arbitration at all. Palavera It is a different thing, Your Honor. And we, as I said, if the question is whether a district court would decide this, we'd be happy to have the Federal District Court interpret the contract, or this court could do it. The contract is an independent contractor agreement on its face. So I do think it is a different inquiry. And this Court has never held in interpreting that provision is an arbitrability issue that can be seen. The reason that it's different is that when you decide whether parties have agreed to arbitrate arbitrability, is there an arbitration clause or not, you're looking to their intent and contract document. When you decide whether they are procedural bars to this arbitration, you are looking to interpret a contract again, which will have the thing there. All right? Here we are not doing that. We are interpreting a statute. And there is no reason, all right. You see that, I mean, it seems to me very different. As to the general question, if you read this just off the bat, you might think there is a whole category of arbitration called labor arbitration. And labor arbitration, even in 1925 and before, worked pretty well. And so you might have thought that Congress had in mind, we're not talking here about labor arbitration. We're talking about business arbitration. And particularly labor arbitration where we don't have constitutional authority to act, because that's what people thought in 1925. And so that is not just a dictionary word. That's saying that thereafter is trying to exclude arguments between employee ease, not in interstate commerce, et cetera, and their employers from this statute. The NLRB or its predecessors or early other methods are available for labor arbitration. If you take that as a kind of framework, it's hard to do with certain circumstances, I agree, but still

. I was about to say that. Yeah, yeah, of course. But still, the circuit city is, it says what it says, but I don't know when we want to go further than necessary. Well, you know, and I do think if we look at the dissent in circuit city, was making the point that this was about labor statutes. But the labor statutes apply to employees, and the unions are bargaining for employees, not for independent contractors. The labor strife and the labor piece issues were employees striking in the battles between the railroads and the unions. But all the argument that the independent contractor status here was a sham that it was a label rigged to make this person appear on the face, as you said, an independent contractor, when in fact the new prime pulls all the shots, whether you label this driver an independent contractor or an employee, he is subject to new prime's control as to a lot more than just the result of the work. Yeah, Justice. That's an argument that this person, this is a phony label that in fact this person is an employee, not an independent contractor. We disagree, obviously, on the merits. That's the merits question that would be arbitrated. And if Mr. Olivera is correct, he'd be entitled to further relief under the Fair Labor Standards Act, which is one of the provisions he's suing under. We disagree with that. And the other point, Justice Ginsburg, is that here it's undisputed that Mr. Olivera had the choice, the free at his choice could to be either an independent contractor or an employee. And if you know that he was told by a new prime's representative, you could be one or the other, but it's to give a benefit if you elect the independent contractor for that. But yes, Your Honor, that's what he alleges. But the, there's evidence, some of the Amicus briefs talk about this, that independent contractors make net out much more in pay. They have freedom and flexibility. And it may be that it didn't turn out well for Mr

. Olivera. And if he's right, I want to make this clear, the arbitration process needs to be fair, and he would have Mr. Olivera, and the new prime would put their cases onto an arbitrator. And if he's right, he'll prevail. If new primes correct, it will prevail. And these arbitration proceedings can produce significant awards. Multiple people will bring the actions. I've seen it happen with great frequency. There is effective relief. And so the theory that this is a sham, that goes to the merits and to the function and how the relationship was in practice. Now, on this, I understand, I've been pondering your answer to the question I asked a while ago. Did I understand you would be perfectly happy to have a court decide the arbitrability issue here? Here are, we think that there's a, that as we've argued that this falls within rent to center maybe one step beyond. But if the court were to rule that independent contractor agreements are not contracts of employment, but we need a court, either this court or the district court to decide that. As I said, we trust courts, too, to make that determination. Well, I must have missed it. I thought there was a lot of fighting over the question of whether a court or an arbitrator should decide the arbitrability in this case. I thought that was the first question presented. That is the first question presented. We stand out of here, and I'm not abandoning it. But the main problem we have with what the district court ordered, the principal problem was that it was going to be a trial on the main issue. In fact, the issue Justice Ginsburg mentioned that is this really independent contractor agreement, is it a contract of employment? The statute focuses on the contract, not on the activities

. And so the first step we would respectfully cement if the court rejects our argument about arbitrability would be to rule that this goes back to the district court, or this court rules as a matter of law based on the contract. And then the case, if we're correct that it is an independent contractor agreement, I think it's on the undisputed facts, it is, it has all the elements. Then we go to arbitration, and then we litigate the issue. Q. Is there any other area of law where we take the party's label, employee versus independent contractor, and give it binding effect? I thought for virtually every other purpose in tax law, labor law, I just don't know another area where we take the form of the contract as dispositive of the legal issue, whether you're an employer or an independent contractor. I can't think of one, but here we have the unique circumstance where the statute focuses on the contracts. And Justice Breyer was making the point. This was back in 1925, where there's a real sensitivity about commerce power. And so here, the statute focuses on the contracts. And I go back to Darden and Reed and the 1915 decision that cited in those cases Robinson, which I think the case is. But that only gets you as far as letting the arbitrator decide whether the arbitrability clause controls. I don't think that gets to the legal responsibility. But you're on an- To the merits question, whether he was an employee or an independent contractor entitled to more pay or not. And you're on a- I hear what you're saying. We're not arguing that if you just slap the label independent contractor on a contract game over, the terms of the agreement give Mr. Olivera the power to work for others to determine how to do the job. It has all the features of- I don't want to argue the merits. I'm arguing meaning that you can argue. You argue to the court that you lost on that, but on that. At least the arbitrability. Yes

. And on that point, you're on it in terms of determining whether it's arbitrable. My only point was that whether it's the arbitrator or the court, the inquiry should be, what is this agreement? Is it a contract of employment on its face, the four corners of the agreement? If it is, then it's exempt from the act. If it's an independent contractor agreement, it's subject to the act. Then the arbitrator would do your honor what you were suggesting. Probe the arguments, was this a legitimate agreement? What was it? And is Mr. Olivera entitled to relief? With that, Mr. Chief Justice, I'd like to reserve my time. Thank you. Thank you, Council. Mr. Chief Justice, and may it please the Court. It's black letter of law that statues are interpreted according to their ordinary, common meeting, not now, but at the time they were passed. And there's overwhelming evidence that in 1925, when the Federal Arbitration Act was passed, the words contract of employment were a general category for agreements to perform work. They included the agreements of common law servants as well as independent contractors. Whether you look at statutes, case law, newspaper articles, even actual contracts themselves, the result is the same, the vast majority of sources called independent contractors agreements to perform work, contracts of employment. And perhaps most relevantly, Congress itself repeatedly used the phrase that way. The Congress passed multiple statutes contemporaneous with the FAA that all used the phrase contract of employment to refer to independent contractors or grievance to perform work. Prime has said nothing about these statutes at all. Instead, Prime dismisses the mountain of sources that used the phrase contract of employment to refer to independent contractors or grievance to perform work as people unthinkingly using the term that way. But that's, in fact, precisely the point. Without even thinking about it, everyone from this Court to Congress to newspaper articles to ordinary contract rafters themselves, everyone understood the category contracts of employment to include the agreements of independent contractors as well as other workers. Does the concept of a contract of employment involving a class of workers, and just a so-and-mine or focused on the term workers? A class of workers engaged in foreign or interstate commerce apply to all independent contractors who are engaged to perform some type of work. It would apply to all independent contractors who are engaged in foreign or interstate commerce. And this Court has said that the class of workers engaged in foreign or interstate commerce is quite narrow, actually. It's people who are directly involved in transporting goods or so closely associated to it to be assumed to be essentially directly involved. So anybody who's involved, there are no distinctions among the types of independent contractors who might be covered? No, Your Honor. As long as there are a worker, then anybody is it? But anybody who does work is a worker. Correct. That's correct, Your Honor. And this makes sense if you look at the historical context and the statutory context when this exemption was enacted. So Circuit City says that the exemption was trying to achieve two goals. The first goal is Congress was trying to avoid conflicts with pre-existing dispute resolution statutes. And the pre-existing dispute resolution statutes enforced at the time define their scope functionally in terms of the work that was performed, not in terms of the worker's employment status. And so if the exemption depended on a worker's employment status, it would create exactly the kinds of conflicts that Congress was trying to avoid. So if you look, in fact, at the Transportation Act, which was the statute that governed railroad workers at the time, and if you look, in fact, at every dispute resolution statute that preceded the Transportation Act, they all define the phrase railroad employees to mean a worker engaged in the work of the railroad. That is, they defined it based on the work that you did, not your technical employment status. May I go back to Justice Alito's question and just give you a hypothetical and say whether your argument includes this, too? So suppose that Amazon contracts with FedEx or UPS to ship all its products, and they want to send their disputes to arbitration. Does that fall within the act or is that fall within this exemption? It would not fall within the exemption. It would be subject to the FAA. And the reason for that is because the FAA required exempts rather a class of workers engaged in foreigner interstate commerce, not companies engaged in foreigner interstate commerce. And FedEx wouldn't be considered a worker. They would be considered a company

. Does the concept of a contract of employment involving a class of workers, and just a so-and-mine or focused on the term workers? A class of workers engaged in foreign or interstate commerce apply to all independent contractors who are engaged to perform some type of work. It would apply to all independent contractors who are engaged in foreign or interstate commerce. And this Court has said that the class of workers engaged in foreign or interstate commerce is quite narrow, actually. It's people who are directly involved in transporting goods or so closely associated to it to be assumed to be essentially directly involved. So anybody who's involved, there are no distinctions among the types of independent contractors who might be covered? No, Your Honor. As long as there are a worker, then anybody is it? But anybody who does work is a worker. Correct. That's correct, Your Honor. And this makes sense if you look at the historical context and the statutory context when this exemption was enacted. So Circuit City says that the exemption was trying to achieve two goals. The first goal is Congress was trying to avoid conflicts with pre-existing dispute resolution statutes. And the pre-existing dispute resolution statutes enforced at the time define their scope functionally in terms of the work that was performed, not in terms of the worker's employment status. And so if the exemption depended on a worker's employment status, it would create exactly the kinds of conflicts that Congress was trying to avoid. So if you look, in fact, at the Transportation Act, which was the statute that governed railroad workers at the time, and if you look, in fact, at every dispute resolution statute that preceded the Transportation Act, they all define the phrase railroad employees to mean a worker engaged in the work of the railroad. That is, they defined it based on the work that you did, not your technical employment status. May I go back to Justice Alito's question and just give you a hypothetical and say whether your argument includes this, too? So suppose that Amazon contracts with FedEx or UPS to ship all its products, and they want to send their disputes to arbitration. Does that fall within the act or is that fall within this exemption? It would not fall within the exemption. It would be subject to the FAA. And the reason for that is because the FAA required exempts rather a class of workers engaged in foreigner interstate commerce, not companies engaged in foreigner interstate commerce. And FedEx wouldn't be considered a worker. They would be considered a company. And I want to return to what Circuit City said about the goals of this exemption. So just give me a little bit more on that. In every case we have to figure out whether a worker is involved or a company is involved. That's correct. And in most cases that won't be difficult. Here, for example, that's not a disputed issue. And I've seen very, very few cases where that is, in fact, a disputed issue. But it's true that if, in the rare case where it is, the court would have to figure that out. And that's based on the text of the FAA. The FAA says we exempt these kinds of contracts. And so if there are questions about whether a contracted issue is the kind of contract that's exempted, then a court has to figure it out to determine whether the FAA applies before applying it. And to return to the goals of the Act expressed in Circuit City. So we have not conflicting with pre-existing statutes. And we know that those statutes applied functionally. They applied to people's role in work. And I'll note also on that first goal. Even if we interpret those other statutes narrowly to apply solely to common law employees on primed interpretation, the FAA would still conflict with the, with those other statutes. Because even if those other statutes applied only to common law employees, what Prime is saying is the exemption doesn't apply to common law employees. It applies to whatever to people whose contracts say their common law employees, even if they're not. And so you'd have a whole class of people even on Prime's interpretation that would be subject both to these alternative pre-existing alternative dispute resolution statutes as well as the FAA. So anybody whose contract was silent, anybody who was illegally misclassified

. And I want to return to what Circuit City said about the goals of this exemption. So just give me a little bit more on that. In every case we have to figure out whether a worker is involved or a company is involved. That's correct. And in most cases that won't be difficult. Here, for example, that's not a disputed issue. And I've seen very, very few cases where that is, in fact, a disputed issue. But it's true that if, in the rare case where it is, the court would have to figure that out. And that's based on the text of the FAA. The FAA says we exempt these kinds of contracts. And so if there are questions about whether a contracted issue is the kind of contract that's exempted, then a court has to figure it out to determine whether the FAA applies before applying it. And to return to the goals of the Act expressed in Circuit City. So we have not conflicting with pre-existing statutes. And we know that those statutes applied functionally. They applied to people's role in work. And I'll note also on that first goal. Even if we interpret those other statutes narrowly to apply solely to common law employees on primed interpretation, the FAA would still conflict with the, with those other statutes. Because even if those other statutes applied only to common law employees, what Prime is saying is the exemption doesn't apply to common law employees. It applies to whatever to people whose contracts say their common law employees, even if they're not. And so you'd have a whole class of people even on Prime's interpretation that would be subject both to these alternative pre-existing alternative dispute resolution statutes as well as the FAA. So anybody whose contract was silent, anybody who was illegally misclassified. And so there'd be a conflict even on Prime's own interpretation of these statutes. And again, we know that these statutes in fact were applied functionally. The historian's brief describes dozens of cases in which the Transportation Act was applied to independent contractors or people working for independent contractors. And the second goal of the statute, as Circuit City explains, beyond the specific conflicts, is that Congress was concerned generally with transportation workers' role in the free flow of goods. The FAA was enacted in the wake of years of labor unrest in the transportation industry that had repeatedly shut down commerce. And I want to note that this labor unrest, Prime says that it was only common law employees of the railroads. That's in fact not true. The shopman strike, which happened just before the FAA was passed, was caused in large part by workers who were not common law servants of the railroads that they were striking against. And so given these years of labor unrest and the havoc that Congress had seen, that people who were not common law servants could wreak, it makes perfect sense that Congress would exempt workers based on their role in the transportation of goods. That is, their ability to shut down commerce rather than their technical employment status that was listed in their contract. It would make no sense at all for Congress to treat workers who had the same ability to disrupt Congress differently simply because of what their contract said. And I want to note that if we take Prime's interpretation, that would also lead us to absurd results. In at least two ways. First, on Prime's interpretation, if a worker's contract is silent, that is, if it doesn't say what your employment status is or not, then it would be impossible to determine whether to apply the contract at all. And second, if a contract misclassified a worker, illegally misclassified a worker as an independent contractor, then the FAA, unlike any other federal statute, would depend on that illegal misclassification rather than the actual worker's status. And so we have the text of the statute, the context of the statute, and the absurd results that would result all leading us, pointing us in the same direction. And quickly, just on the first question, I want to note that I think as your Honors understand, in general, we don't apply statutes that don't apply. And so if a court is going to apply a statute, it has to figure out first whether it applies. I understand. Justice, please. One of the petitioners' argument that forget about the FAA that a court has inherent authority to stay up for seeding pending utilization of an alternate dispute resolution mechanism chosen by the parties

. And so there'd be a conflict even on Prime's own interpretation of these statutes. And again, we know that these statutes in fact were applied functionally. The historian's brief describes dozens of cases in which the Transportation Act was applied to independent contractors or people working for independent contractors. And the second goal of the statute, as Circuit City explains, beyond the specific conflicts, is that Congress was concerned generally with transportation workers' role in the free flow of goods. The FAA was enacted in the wake of years of labor unrest in the transportation industry that had repeatedly shut down commerce. And I want to note that this labor unrest, Prime says that it was only common law employees of the railroads. That's in fact not true. The shopman strike, which happened just before the FAA was passed, was caused in large part by workers who were not common law servants of the railroads that they were striking against. And so given these years of labor unrest and the havoc that Congress had seen, that people who were not common law servants could wreak, it makes perfect sense that Congress would exempt workers based on their role in the transportation of goods. That is, their ability to shut down commerce rather than their technical employment status that was listed in their contract. It would make no sense at all for Congress to treat workers who had the same ability to disrupt Congress differently simply because of what their contract said. And I want to note that if we take Prime's interpretation, that would also lead us to absurd results. In at least two ways. First, on Prime's interpretation, if a worker's contract is silent, that is, if it doesn't say what your employment status is or not, then it would be impossible to determine whether to apply the contract at all. And second, if a contract misclassified a worker, illegally misclassified a worker as an independent contractor, then the FAA, unlike any other federal statute, would depend on that illegal misclassification rather than the actual worker's status. And so we have the text of the statute, the context of the statute, and the absurd results that would result all leading us, pointing us in the same direction. And quickly, just on the first question, I want to note that I think as your Honors understand, in general, we don't apply statutes that don't apply. And so if a court is going to apply a statute, it has to figure out first whether it applies. I understand. Justice, please. One of the petitioners' argument that forget about the FAA that a court has inherent authority to stay up for seeding pending utilization of an alternate dispute resolution mechanism chosen by the parties. Your Honor, as this Court has repeatedly explained, courts have a duty to exercise the jurisdiction that Congress has granted them. The exceptions to that duty are really under exceptional circumstances. And one of those exceptions could be an ongoing proceeding, but there is no ongoing proceeding here. Courts generally don't have the authority to just stay up for seeding just because they want to or because there might be some proceeding that happens in the future. And I'll note that Prime did not ask the Court to use its inherent authority. Prime solely asked the Court to rely on the FAA. And so the Court has to decide whether the FAA applies to know whether it can grant Prime's request. Well, I understand your friend on the other side not to care about that. Did I? That is how I understood the argument as well. That's correct. And I just want to, yes. Well, while we have here, in response to Justice Alito and Justice Kagan, you raised a very interesting point about the difference between workers and companies. And similar to the kind of question we have here presented between employees and independent contractors, there are going to be fact issues in either circumstance where a district court is going to have to sort them out. The courts disagree over how summary those procedures should be. Let's say we're just in a world of workers versus companies. How would you expect the district court to sort that out? I mean, the FAA is opposed to resolve these things quickly. In a summary fashion section forces, if there's a dispute of whether there is a contract to arbitrate, it's supposed to go to a summary trial, not five years of discovery and all the glories that entails that we're from often painfully familiar with these days. But how would you advise us to write that portion of the opinion if? Your Honor, at first blush, you could look at the contract and it would only require factual, any sort of factual inquiry. If there was a dispute about it, say the contract was a subterfuge or the contract doesn't say anything at all. And in the few cases where this has come up, I believe courts have resolved it largely on declarations. A very limited discovery would be needed to determine whether a person performed the work himself

. Your Honor, as this Court has repeatedly explained, courts have a duty to exercise the jurisdiction that Congress has granted them. The exceptions to that duty are really under exceptional circumstances. And one of those exceptions could be an ongoing proceeding, but there is no ongoing proceeding here. Courts generally don't have the authority to just stay up for seeding just because they want to or because there might be some proceeding that happens in the future. And I'll note that Prime did not ask the Court to use its inherent authority. Prime solely asked the Court to rely on the FAA. And so the Court has to decide whether the FAA applies to know whether it can grant Prime's request. Well, I understand your friend on the other side not to care about that. Did I? That is how I understood the argument as well. That's correct. And I just want to, yes. Well, while we have here, in response to Justice Alito and Justice Kagan, you raised a very interesting point about the difference between workers and companies. And similar to the kind of question we have here presented between employees and independent contractors, there are going to be fact issues in either circumstance where a district court is going to have to sort them out. The courts disagree over how summary those procedures should be. Let's say we're just in a world of workers versus companies. How would you expect the district court to sort that out? I mean, the FAA is opposed to resolve these things quickly. In a summary fashion section forces, if there's a dispute of whether there is a contract to arbitrate, it's supposed to go to a summary trial, not five years of discovery and all the glories that entails that we're from often painfully familiar with these days. But how would you advise us to write that portion of the opinion if? Your Honor, at first blush, you could look at the contract and it would only require factual, any sort of factual inquiry. If there was a dispute about it, say the contract was a subterfuge or the contract doesn't say anything at all. And in the few cases where this has come up, I believe courts have resolved it largely on declarations. A very limited discovery would be needed to determine whether a person performed the work himself. The question would be, did the parties contemplate that the individual who is suing performed the work himself, him or herself, or did they contemplate that it would be a company? And so that inquiry would require a very limited discovery, if any, at all. So is it safe to say that we have at least common ground on one thing? Maybe a few things today, but at least on this, that the proceedings may not be limited to the form of a document before us, but should be summary in nature. Yes, I agree with that, Your Honor. That's correct. What do you mean by a company? I mean, anything that is not a real person. So, for example, a corporation would be a company. A corporation would be a company. What if it's a sole proprietorship? Then the question would be, what did the parties contemplate that the person who owns the proprietorship would perform the work himself? And if that's true, then it would be an agreement to perform work of a transportation worker. If that's not true. So some independent, I thought you said all independent contractors would fall within this, provided that they were engaged in foreign or interstate commerce in the sense relevant under the FAA. But now I think you're, are you modifying that? So, are you modifying that? Yes, Your Honor. I'm sorry, I misunderstood the initial question. I was talking about people who would be considered workers. So independent contractors who are businesses would not fall within the exemption. And that's based on the text of the exemption. So if they're businesses, what does that mean? I mean, I got you on corporations, but beyond that, are we getting into a difficult area? I think the- It's a sole proprietorship, if it's a partnership, but it's in business. I think it's easiest to approach the question from the other direction, which is to say, was this- did the parties contemplate that the person with whom they agreed would personally perform the work? And if so, then it would be an agreement to perform work with a transportation worker. If the parties didn't contemplate that the person who agreed to do the work would personally do it, then it wouldn't fall within the exemption. And so we don't need to decide the exact definition of business. So is this an agreement for someone who is engaged in commerce to personally perform the work? But to take an opposite extreme from UPS or FedEx, you know, suppose it's like Joe Smith truckers, and Joe Smith truckers is Joe Smith and his brother. And the contract was with Joe Smith workers, and he says, my brother, will do the work

. The question would be, did the parties contemplate that the individual who is suing performed the work himself, him or herself, or did they contemplate that it would be a company? And so that inquiry would require a very limited discovery, if any, at all. So is it safe to say that we have at least common ground on one thing? Maybe a few things today, but at least on this, that the proceedings may not be limited to the form of a document before us, but should be summary in nature. Yes, I agree with that, Your Honor. That's correct. What do you mean by a company? I mean, anything that is not a real person. So, for example, a corporation would be a company. A corporation would be a company. What if it's a sole proprietorship? Then the question would be, what did the parties contemplate that the person who owns the proprietorship would perform the work himself? And if that's true, then it would be an agreement to perform work of a transportation worker. If that's not true. So some independent, I thought you said all independent contractors would fall within this, provided that they were engaged in foreign or interstate commerce in the sense relevant under the FAA. But now I think you're, are you modifying that? So, are you modifying that? Yes, Your Honor. I'm sorry, I misunderstood the initial question. I was talking about people who would be considered workers. So independent contractors who are businesses would not fall within the exemption. And that's based on the text of the exemption. So if they're businesses, what does that mean? I mean, I got you on corporations, but beyond that, are we getting into a difficult area? I think the- It's a sole proprietorship, if it's a partnership, but it's in business. I think it's easiest to approach the question from the other direction, which is to say, was this- did the parties contemplate that the person with whom they agreed would personally perform the work? And if so, then it would be an agreement to perform work with a transportation worker. If the parties didn't contemplate that the person who agreed to do the work would personally do it, then it wouldn't fall within the exemption. And so we don't need to decide the exact definition of business. So is this an agreement for someone who is engaged in commerce to personally perform the work? But to take an opposite extreme from UPS or FedEx, you know, suppose it's like Joe Smith truckers, and Joe Smith truckers is Joe Smith and his brother. And the contract was with Joe Smith workers, and he says, my brother, will do the work. So if the parties contemplated that the brother would do the work, if the brother- if the brother is the one suing, he's likely not bound by the arbitration agreement at all because he won't have been the one to sign it. The business will have been the one to sign it. If Joe Smith is suing, and if then the question would be, did the parties contemplate that Joe Smith was agreeing to perform work as a transportation worker, or did the parties contemplate that Joe Smith was agreeing that this company, somebody at this company, would perform work? And I think that would be the question. And this is a really rare, as this case shows where it's undisputed, it's a really rare situation in which it would come up. And part of the reason for that is if a company agrees to arbitration, then it's hard to say that any individual who wasn't contemplated in the contract would have agreed to arbitration at all. It sort of sounds like what you're saying is that if the person is a real independent contract, and the person is outside of the exemption, but if the entity is not a real independent contractor, which is your argument here regarding Mr. Olvera, it's different. I see if there are individual workers who are independent contractors, and we know there were such workers in 1925 as now, there are individuals who are independent contractors, even if they're bona fide independent contractors, they would be covered within the scope of the exemption. What I'm saying is if there's an agreement that's not of a specific person, a worker to perform work, then they're outside the scope. And I want to quickly address one point that Prime said, Prime says that none of the sources that we have cited are in the context of distinguishing between independent contractors and common law servants. And that's in fact not true. We say dozens of sources that are in that context. In fact, we cite a treatise that is about the law of independent contractors. The reason that's not the majority of sources we've cited is because we've also cited dozens of sources in which in a bunch of different contexts. And so the overwhelming weight of authority in all of these contexts is that a contract of employment was an agreement to perform work. And we were talking about Wisconsin Central before, but what's controversial says is we look at what the ordinary common meaning is. And it's very clear that what an ordinary common person would have understood this exemption to mean in 1925 is that it applied to all agreements to perform work. We don't look at the rare isolated instance. We look at the overwhelming weight of authority, and that means that the agreement is an agreement to perform work. If there. So, Pussy, you went on the issue of arbitrability

. So if the parties contemplated that the brother would do the work, if the brother- if the brother is the one suing, he's likely not bound by the arbitration agreement at all because he won't have been the one to sign it. The business will have been the one to sign it. If Joe Smith is suing, and if then the question would be, did the parties contemplate that Joe Smith was agreeing to perform work as a transportation worker, or did the parties contemplate that Joe Smith was agreeing that this company, somebody at this company, would perform work? And I think that would be the question. And this is a really rare, as this case shows where it's undisputed, it's a really rare situation in which it would come up. And part of the reason for that is if a company agrees to arbitration, then it's hard to say that any individual who wasn't contemplated in the contract would have agreed to arbitration at all. It sort of sounds like what you're saying is that if the person is a real independent contract, and the person is outside of the exemption, but if the entity is not a real independent contractor, which is your argument here regarding Mr. Olvera, it's different. I see if there are individual workers who are independent contractors, and we know there were such workers in 1925 as now, there are individuals who are independent contractors, even if they're bona fide independent contractors, they would be covered within the scope of the exemption. What I'm saying is if there's an agreement that's not of a specific person, a worker to perform work, then they're outside the scope. And I want to quickly address one point that Prime said, Prime says that none of the sources that we have cited are in the context of distinguishing between independent contractors and common law servants. And that's in fact not true. We say dozens of sources that are in that context. In fact, we cite a treatise that is about the law of independent contractors. The reason that's not the majority of sources we've cited is because we've also cited dozens of sources in which in a bunch of different contexts. And so the overwhelming weight of authority in all of these contexts is that a contract of employment was an agreement to perform work. And we were talking about Wisconsin Central before, but what's controversial says is we look at what the ordinary common meaning is. And it's very clear that what an ordinary common person would have understood this exemption to mean in 1925 is that it applied to all agreements to perform work. We don't look at the rare isolated instance. We look at the overwhelming weight of authority, and that means that the agreement is an agreement to perform work. If there. So, Pussy, you went on the issue of arbitrability. The Court says I'm going to decide whether the exemption applies. But then you lose on the issue of the interpretation of the exemption. The Court says it doesn't apply to an independent contractor, Mr. Olvarez, an independent contractor, therefore I'm going to order arbitration. Would the arbitrator then be bound by the determination that he is an independent contractor for purposes of applying the Fair Labor Standards Act? No, Your Honor, for two reasons. First, it would just be an initial decision of who the right decision maker is, and if the Court held that the right decision maker is the arbitrator, then the arbitrator could make that decision. But the second answer is that if a Court were to decide the question of if the Court were to hold that the exemption only applies to common law servants, then it would likely decide that question under the common law. And the Fair Labor Standards Act has a different standard. And so the question on the merits of whether a worker is an employee or an independent contractor is different than the question that would be if the Court interpreted the exemption to be limited to common law servants. And on that point, I do want to note that prime sites, you know, are handful of isolated instances, but in fact none of the sources that prime sites, in fact, support its position, none of those sources say that we look just to the contract to see whether someone is a common law servant. At most, those sources use the phrase contract of employment more narrowly than what we would suggest the ordinary meaning is. But none of them say that if there's reality contrary to the contract, we would look at that. And again, so the both the structure of the statute, the text of the statute and the history all of those factors mean that in 1925, the ordinary person would have understood this exemption to apply to all agreements to perform work of transportation workers. If there are no further questions. Thank you. Thank you, Councilor. Mr. Rutrose, you have five minutes left. Thank you, Mr. Chief Justice. I want to start by saying we agree with Mr

. The Court says I'm going to decide whether the exemption applies. But then you lose on the issue of the interpretation of the exemption. The Court says it doesn't apply to an independent contractor, Mr. Olvarez, an independent contractor, therefore I'm going to order arbitration. Would the arbitrator then be bound by the determination that he is an independent contractor for purposes of applying the Fair Labor Standards Act? No, Your Honor, for two reasons. First, it would just be an initial decision of who the right decision maker is, and if the Court held that the right decision maker is the arbitrator, then the arbitrator could make that decision. But the second answer is that if a Court were to decide the question of if the Court were to hold that the exemption only applies to common law servants, then it would likely decide that question under the common law. And the Fair Labor Standards Act has a different standard. And so the question on the merits of whether a worker is an employee or an independent contractor is different than the question that would be if the Court interpreted the exemption to be limited to common law servants. And on that point, I do want to note that prime sites, you know, are handful of isolated instances, but in fact none of the sources that prime sites, in fact, support its position, none of those sources say that we look just to the contract to see whether someone is a common law servant. At most, those sources use the phrase contract of employment more narrowly than what we would suggest the ordinary meaning is. But none of them say that if there's reality contrary to the contract, we would look at that. And again, so the both the structure of the statute, the text of the statute and the history all of those factors mean that in 1925, the ordinary person would have understood this exemption to apply to all agreements to perform work of transportation workers. If there are no further questions. Thank you. Thank you, Councilor. Mr. Rutrose, you have five minutes left. Thank you, Mr. Chief Justice. I want to start by saying we agree with Mr. Oliver's position that a determination that this was an independent contract for agreement and therefore could go to our progression would not bind the arbitrator, then we'd go to the merits. Since Councilor left off with the language and history of the statute, let me just go back to the statute. It says contracts of employment. And this court, the read case, which is community for creative nonviolence versus read, this court, this court said, quote, nothing in the text to the work for higher provisions, it was the Copyright Act, indicates that Congress used the words employee in employment to describe anything other than the conventional relationship of an employer and employee, close quote. The court then went on to say that when Congress hasn't put anything in the statute to suggest that something else like any worker doing anything, I'm paraphrasing, then we look to traditional common law agency principles. On pages 10 and 11 of our brief, we responded to the cases and authorities that, that Mr. Oliver decided, with among other things, this court in the copage case, the court declared, does not the ordinary contract of employment, include an insistence by the employer that the employee shall agree as a condition of the employment that he will not be idle and will not work for whom he pleases, but will serve as President and employer and him only so long as the relationship between them shall continue. Was the Copyright Act of the Union, was that the contract at issue? I think so, Your Honor. It was copied, yes, Copyright Act of the Union. And so the court there was clearly making the very distinction we're talking about, that it was well established that a contract of employment was what most people would think. I have a job, I have an employer, they can tell me what to do, they can tell me when I come to work, they can order me to perform tasks. That was- The kind of contract that was involved in copage-free Kansas was outlawed by the National Labor Relations Act, wasn't it? Your Honor, I don't know on that point, but- But the reason we cite it, Your Honor, is that it was well established what a contract of employment was. And the other point I wanted to make was on the alternative dispute resolution provisions that Sir Considie talked about. Again, the court said with respect to each of them, first of all, Congress with the exemption was not seeking to oust certain parties from arbitration. It was protecting arbitration because there were alternative mechanisms. So the exemption itself is pro-arbitration. And in Sir Considie on page 1, 21, 21, with respect to each of the provisions it cited, the court talked about employment relationships, so with respect to the Transportation Act that Council mentioned, talked about the employees under the Federal Law, cited the Transportation Act, Railway Labor Act, employees, the Shipping Commission Act, employers and employees. So this court and Congress were anticipating the traditional employment relationship based on the language of the statute. And with respect to the scope of the provision, in this case, the independent contractor agreement is between new prime and the limited liability corporation that Mr. Olivera formed. So it is an agreement between two businesses and Council saying, and then we have to look and see how the parties contemplated the arrangement would function

. Oliver's position that a determination that this was an independent contract for agreement and therefore could go to our progression would not bind the arbitrator, then we'd go to the merits. Since Councilor left off with the language and history of the statute, let me just go back to the statute. It says contracts of employment. And this court, the read case, which is community for creative nonviolence versus read, this court, this court said, quote, nothing in the text to the work for higher provisions, it was the Copyright Act, indicates that Congress used the words employee in employment to describe anything other than the conventional relationship of an employer and employee, close quote. The court then went on to say that when Congress hasn't put anything in the statute to suggest that something else like any worker doing anything, I'm paraphrasing, then we look to traditional common law agency principles. On pages 10 and 11 of our brief, we responded to the cases and authorities that, that Mr. Oliver decided, with among other things, this court in the copage case, the court declared, does not the ordinary contract of employment, include an insistence by the employer that the employee shall agree as a condition of the employment that he will not be idle and will not work for whom he pleases, but will serve as President and employer and him only so long as the relationship between them shall continue. Was the Copyright Act of the Union, was that the contract at issue? I think so, Your Honor. It was copied, yes, Copyright Act of the Union. And so the court there was clearly making the very distinction we're talking about, that it was well established that a contract of employment was what most people would think. I have a job, I have an employer, they can tell me what to do, they can tell me when I come to work, they can order me to perform tasks. That was- The kind of contract that was involved in copage-free Kansas was outlawed by the National Labor Relations Act, wasn't it? Your Honor, I don't know on that point, but- But the reason we cite it, Your Honor, is that it was well established what a contract of employment was. And the other point I wanted to make was on the alternative dispute resolution provisions that Sir Considie talked about. Again, the court said with respect to each of them, first of all, Congress with the exemption was not seeking to oust certain parties from arbitration. It was protecting arbitration because there were alternative mechanisms. So the exemption itself is pro-arbitration. And in Sir Considie on page 1, 21, 21, with respect to each of the provisions it cited, the court talked about employment relationships, so with respect to the Transportation Act that Council mentioned, talked about the employees under the Federal Law, cited the Transportation Act, Railway Labor Act, employees, the Shipping Commission Act, employers and employees. So this court and Congress were anticipating the traditional employment relationship based on the language of the statute. And with respect to the scope of the provision, in this case, the independent contractor agreement is between new prime and the limited liability corporation that Mr. Olivera formed. So it is an agreement between two businesses and Council saying, and then we have to look and see how the parties contemplated the arrangement would function. But the agreement itself says that Mr. Olivera could hire other employees, could work for other entities. It gave him the right to do that. So from the face of the contract, it gave him all of those rights. And finally, just with respect to the definition of who is an employee and who is not. Because I do think it is relevant. To divorce what Mr. Olivera did was take word contract and find the broadest definition of contract and then employment and find the broadest definition of that and put them together. We cite Black's law dictionary, which says a contract of employment in this, tracking it back to 1927, was an agreement between an employer and employee that states the terms and conditions of employment. But the broadest, this Court has said, has striking breadth. The broadest definition in Federal law of employees and the Fair Labor Standards, the very provision that Mr. Olivera is invoking here and independent contractors are not covered by that definition. So it would be anomalous in the extreme to rule against us on these issues. Thank you very much. Thank you, Council. The case is submitted.

We'll hear argument next in case 17340, new prime versus Oliviara. Mr. Butros? Mr. Chief Justice, and may it please the Court. The first circuit held at independent contractor agreements are contracts of employment, and therefore they were exempt from the Federal Arbitration Act. This reading of Section 1's exemption is contrary to the plain meaning of the statute and its structure, purpose, history, and context. This Court for many years, going back to before when the Federal Arbitration Act was enacted, has said over and over again that if Congress uses words like employment or employee or employer in a statute without further helpful definition, it intends for the common law agency rules to govern, the govern an employer and employee relationship. In the Section 1 exemption, Congress did not define or suggest it was coming up with a new creative interpretation of the word employment or employees, which is also used in that clause. The first circuit is just about the word worker in the very clause. Shall apply to contracts of employment of Seaman railroad employees or any other class of workers engage in foreign or interstate commerce. Congress didn't use the word employees if it meant employees. It used a much broader term, workers. But it shouldn't that inform what it meant by contract of employment? I think it does, Your Honor, it's a contract of employment of a worker. So if the worker had a different type of contract, a contract that's an independent contractor agreement would fall squarely outside statute. It's a statute. It should apply to any other class of workers, not employees. It used a much broader term. But it, Your Honor, it's a residual clause that follows contracts of employment of any other class of worker. So what we're trying to decide is what employment contract of employment means. And if it meant only employees, Congress naturally, I would assume, would have used the word any other class of employees, but instead it chose a much broader word, workers. Well, Your Honor, I think as we have argued, the fact that the railroad employees is also, is mentioned right before that, Seaman, which are traditionally common law master servant employees, demonstrates that- Under the Seaman Act, it covered people who were not contracts of Seaman are not just people who are employees. It also is the tugboat operator who's on the boat guiding it. It's other people who are not simply employees. But Congress just five years earlier in the Jones Act defined Seaman under the Jones Act as actions in the course of their employment and as employees, this Court's Chandras decision also uses the common law definition of substantial connection. What makes you make of the other side that says in the Seaman category, the, this ship surgeon, the pilot qualify as Seaman who are outside the Federal Optration Act, even though they're independent contractors, not common law employees? Justice Ginsburg, I think the physician example is a good one. The case that has been cited by the Respondent didn't involve the question of independent contractor or anything like that. It was the question was, could the Captain basically override the Hippocratic oath in terms of the physician exercising his independent judgment? And I don't think the Court has to determine whether every Seaman and is it was, is an employee or not, the question is whether they had a contract of employment. And under this Court's decision in Circuit City, the Court emphasized that the exemption to the Federal Arbitration Act for contracts of employment should be given a narrow construction and a precise reading in order to further the Pro-Arbitration Policies of the Federal Arbitration Act. Well, now in the sense that it was limited to transportation workers. In that case, yes, Your Honor. That was the issue. But the overall thrust on page 120 to 121 of Circuit City, the Court in talking about Seaman, railroad employees, air carrier, the air carrier employees were added to the Railway Labor Act in 1935, I believe. This Court said over and over again, these were employment relationships, talked about the relationship between employees and employers. So this Court in Circuit City was clearly contemplating exactly what the statute says, that a contract of employment is a contract of employment. It's not an independent contractor agreement. Well, you keep in your brief, and the other side raises this concern. You quickly shift the discussion of contract of employment to whether or not there's an employee-employer relationship. And simply because someone would be considered or not considered an employee, doesn't necessarily answer the question of whether it's a contract of employment. People think naturally of employing an independent contractor. So I don't know why the question is not employee employer, its employment. An employment in many of these contacts has a broader scope than the existence of an employee-employer relationship. It's absolutely true that there are many different definitions of employment out there. But as I said, if the Court's decision in National Mutual Insurance Company versus Darden, which we've cited, and in the community for Creative Non-Violence versus Reed case, which Darden cites, says that Congress, we're going to assume that a common Congress uses employee in Darden, but in Reed, the Court used employment. And said when those terms are used by Congress, we assume Congress intended for the ordinary terms to be used. And here, except the problem is that we don't really assume that because the other side has prevented us, presented us with multiple cases, many of them, in which we use contract of employment to mean employees and independent contractors. It's all contextual, isn't it? Not really, or are most of the cases the vast? I'll give them this. They did a good job of cataloging haphazard in passing uses of contract of employment where it wasn't an issue. So in describing a case about an attorney and a client a court years ago called it a contract of employment. Well, what do we do about the fact that less haphazard that your colleague on the other side has documented that back in 1925, which is when the statute was enacted. And I think you agree that we have to interpret it as a reasonable reader would of at that time. It didn't necessarily distinguish between independent contractors and employees with the degree of care law has subsequently come to use. And maybe even that your own client doesn't use, according to its website, and it speaks of employing, I believe. I can't remember the exact variation of the word, but treats these independent contractors as employing them. So what do we do about the fact that that is at least an available reading still today and that there's a lot of historical evidence at the time of the statute in question that contract of employment may have swept more broadly? A couple things, Justice Gorsuch. First, I don't agree with the respondent that the independent contractor, contract of employment distinction was not well established. It was deeply embedded. This court's decision in the copage case, which we cited in our reply brief, specifically rhetorically, acts as if everyone would know the but this distinction. We cited the Connington Treatise from 1920. It had an entire chapter called Contracts of Employment, and it made the explicit distinction, and this court has over the years cited Mr. Connington in its cases, that contracts of employment were different than independent contractor agreements. What other treatises didn't? We cited another treatise, Your Honor. But you're not denying other treatises, didn't treat them differently. Well, they didn't really, to the extent they addressed the issue, the distinction was well established, Your Honor. Again, responded to his side at a lot of authorities where it just wasn't a discussion or an issue. And the need for a narrow construction of Section 1, in order to further the pro-arbitration policies of the act, plus the presumption that Congress meant what it said when it said employment. That means even if we come to a draw, or even if they come up with some other authorities, the background presumption is that Congress meant contract of employment. And I think it's also important that it's been nearly 100 years, and no court had ever decided that the words Contracts of Employment, which are pretty clear, mean something completely different. The first circuit and the Mr. Olivera, contend that those words mean agreement to work. But if Congress, just so-to-meow-it-wanted to say agreement to work, it could have said that. It said Contracts of Employment. So I think it's just very clear from the language of the statute that Congress intended traditional employment agreements to be the subject of the exemption. Could you address the gateway question? Who decides this? You're on, we believe that the court's cases like renta center and first options that talk about whether you have a valid delegation clause in the first instance, the issue goes to the arbitrator because the parties agreed to arbitrate issues concerning what's arbitral. And that's what this is. We admit we concede that it's a bit different than some of the court's cases, so the Kindred Nurseries case that rule, where the Court ruled that the Federal Obitation Act did apply to a contract when there was a dispute about formation, and the party there had argued that because there was a dispute as to whether an agreement was formed, the FAA hadn't been triggered. But if Section 1 puts an entire category, even if you say it's an arrow category, outside the Obitation Act entirely, it's exempt from the Federal Obitation Act. And how can you use the Obitation Act? The delegation clause would never come into play because if we mentioned fit the description contracts of employment, there outside the Federal Obitation Act, you can't use the Act to enforce any obitration. Yes, Your Honor, that's Respondents' argument, and I recognize it is a bit different than Kindred Nurseries, but it's very similar in the sense that the party there was arguing that the Federal Obitation Act isn't triggered because the agreements invalid from the get go. But the main point I would like to make on this issue about delegation is we trust the courts, too. Our main concern about what the district court did originally was to rule that correct, first ruled correctly, this was not a contract of employment, so that that issue needed to be looked at. But then the court said there would be discovery and then a trial to determine whether the exemption applied. And we respectfully submit that the proc, if a court, whoever decides this, an arbitrator or a court, it should be done based on the four corners of the contract and based on whether it's a contract of employment or an independent contract. I feel like the trial and all was supposed to be determined whether this was an independent contractor and therefore outside the Section 1 exemption. Exactly, Your Honor. And our point is that's the really merits of the case. The Mr. Olivera's argument is that in actual fact, he was an employee. And the way the relationship in practice functioned. So that's the merits. So if we're required to have a trial in Federal District Court about that issue and if new prime prevails and it's determined that he's actually an independent contractor, the right to arbitrate that issue would have basically been defeated. Mr. Boutrus, you've moved nicely to the merits, but just so we haven't ignored that where we've moved so quickly in response to Justice Ginsburg's question. And I share the same concern so perhaps you can help me. Before a court can do anything, issue an order under Section 4 compelling arbitration. That's what you want. As an order from the District Court compelling arbitration, I would have thought it would have had to satisfy itself and had the power to issue such an order. And Section 1 has this carve out. And why isn't it more like a challenge to the delegation provision itself if you don't want to use Rent a Center as your authorities, I believe you do, rather than a challenge to the underlying contract. If we're going to make an analogy, I would have thought the analogy would have worked the other way. Help me. I think, Your Honor, I have to say that is another analogy and it's one that it's another way the court could go. But here, the presumption has kind of been flipped on us. We have an agreement that was in commerce, everyone agrees with that. It's not a contract of employment. It's an independent contractor agreement. On the face of the Federal Arbitration Act, the District Court had jurisdiction. The plaint, Mr. Palavera is asking for an exception. We agreed that if we had a dispute over an issue, any issue arising from the agreement, it would go to an arbitrator. And so it's not a question of jurisdiction. The Federal District Court, I think, had the power, inherent power to stay or in specific order specific performance of an agreement aside from the Federal Arbitration Act. But I do recognize that we're asking on that issue for the Court to take another step. And pivoting back to the merits, on that point, it's the respondent who's asking for an upheaval. Basically, they argue that every word in the exemption is a surprise word. Contract means agreement. Employment means work or business of any kind. Seaman means everything. And in the Wisconsin Central case from last term, where the question was, what does money mean? The Court said the government had made a decent case that money could be interpreted in more broadly. But that wasn't the ordinary usage. And the Court said, does money, is it really ordinary to say money means everything? Here, Mr. Palavera is basically arguing that contract of employment means every type of work or money. Well, but just saying that the arbitrator will decide arbitrability. There are different degrees of arbitrability. It's one thing to say, for example, if you have an agreement, we'll arbitrate all disputes on the plant floor. And then the company builds another extension of it and the question is whether it applies there. That's sort of within the four corners of the arbitration agreement. But if the issue is, does the Act apply at all? That seems to be on a different order of magnitude. And it seems quite another thing to say that the arbitrator gets to decide whether a Court can decide our compel arbitration at all. Palavera It is a different thing, Your Honor. And we, as I said, if the question is whether a district court would decide this, we'd be happy to have the Federal District Court interpret the contract, or this court could do it. The contract is an independent contractor agreement on its face. So I do think it is a different inquiry. And this Court has never held in interpreting that provision is an arbitrability issue that can be seen. The reason that it's different is that when you decide whether parties have agreed to arbitrate arbitrability, is there an arbitration clause or not, you're looking to their intent and contract document. When you decide whether they are procedural bars to this arbitration, you are looking to interpret a contract again, which will have the thing there. All right? Here we are not doing that. We are interpreting a statute. And there is no reason, all right. You see that, I mean, it seems to me very different. As to the general question, if you read this just off the bat, you might think there is a whole category of arbitration called labor arbitration. And labor arbitration, even in 1925 and before, worked pretty well. And so you might have thought that Congress had in mind, we're not talking here about labor arbitration. We're talking about business arbitration. And particularly labor arbitration where we don't have constitutional authority to act, because that's what people thought in 1925. And so that is not just a dictionary word. That's saying that thereafter is trying to exclude arguments between employee ease, not in interstate commerce, et cetera, and their employers from this statute. The NLRB or its predecessors or early other methods are available for labor arbitration. If you take that as a kind of framework, it's hard to do with certain circumstances, I agree, but still. I was about to say that. Yeah, yeah, of course. But still, the circuit city is, it says what it says, but I don't know when we want to go further than necessary. Well, you know, and I do think if we look at the dissent in circuit city, was making the point that this was about labor statutes. But the labor statutes apply to employees, and the unions are bargaining for employees, not for independent contractors. The labor strife and the labor piece issues were employees striking in the battles between the railroads and the unions. But all the argument that the independent contractor status here was a sham that it was a label rigged to make this person appear on the face, as you said, an independent contractor, when in fact the new prime pulls all the shots, whether you label this driver an independent contractor or an employee, he is subject to new prime's control as to a lot more than just the result of the work. Yeah, Justice. That's an argument that this person, this is a phony label that in fact this person is an employee, not an independent contractor. We disagree, obviously, on the merits. That's the merits question that would be arbitrated. And if Mr. Olivera is correct, he'd be entitled to further relief under the Fair Labor Standards Act, which is one of the provisions he's suing under. We disagree with that. And the other point, Justice Ginsburg, is that here it's undisputed that Mr. Olivera had the choice, the free at his choice could to be either an independent contractor or an employee. And if you know that he was told by a new prime's representative, you could be one or the other, but it's to give a benefit if you elect the independent contractor for that. But yes, Your Honor, that's what he alleges. But the, there's evidence, some of the Amicus briefs talk about this, that independent contractors make net out much more in pay. They have freedom and flexibility. And it may be that it didn't turn out well for Mr. Olivera. And if he's right, I want to make this clear, the arbitration process needs to be fair, and he would have Mr. Olivera, and the new prime would put their cases onto an arbitrator. And if he's right, he'll prevail. If new primes correct, it will prevail. And these arbitration proceedings can produce significant awards. Multiple people will bring the actions. I've seen it happen with great frequency. There is effective relief. And so the theory that this is a sham, that goes to the merits and to the function and how the relationship was in practice. Now, on this, I understand, I've been pondering your answer to the question I asked a while ago. Did I understand you would be perfectly happy to have a court decide the arbitrability issue here? Here are, we think that there's a, that as we've argued that this falls within rent to center maybe one step beyond. But if the court were to rule that independent contractor agreements are not contracts of employment, but we need a court, either this court or the district court to decide that. As I said, we trust courts, too, to make that determination. Well, I must have missed it. I thought there was a lot of fighting over the question of whether a court or an arbitrator should decide the arbitrability in this case. I thought that was the first question presented. That is the first question presented. We stand out of here, and I'm not abandoning it. But the main problem we have with what the district court ordered, the principal problem was that it was going to be a trial on the main issue. In fact, the issue Justice Ginsburg mentioned that is this really independent contractor agreement, is it a contract of employment? The statute focuses on the contract, not on the activities. And so the first step we would respectfully cement if the court rejects our argument about arbitrability would be to rule that this goes back to the district court, or this court rules as a matter of law based on the contract. And then the case, if we're correct that it is an independent contractor agreement, I think it's on the undisputed facts, it is, it has all the elements. Then we go to arbitration, and then we litigate the issue. Q. Is there any other area of law where we take the party's label, employee versus independent contractor, and give it binding effect? I thought for virtually every other purpose in tax law, labor law, I just don't know another area where we take the form of the contract as dispositive of the legal issue, whether you're an employer or an independent contractor. I can't think of one, but here we have the unique circumstance where the statute focuses on the contracts. And Justice Breyer was making the point. This was back in 1925, where there's a real sensitivity about commerce power. And so here, the statute focuses on the contracts. And I go back to Darden and Reed and the 1915 decision that cited in those cases Robinson, which I think the case is. But that only gets you as far as letting the arbitrator decide whether the arbitrability clause controls. I don't think that gets to the legal responsibility. But you're on an- To the merits question, whether he was an employee or an independent contractor entitled to more pay or not. And you're on a- I hear what you're saying. We're not arguing that if you just slap the label independent contractor on a contract game over, the terms of the agreement give Mr. Olivera the power to work for others to determine how to do the job. It has all the features of- I don't want to argue the merits. I'm arguing meaning that you can argue. You argue to the court that you lost on that, but on that. At least the arbitrability. Yes. And on that point, you're on it in terms of determining whether it's arbitrable. My only point was that whether it's the arbitrator or the court, the inquiry should be, what is this agreement? Is it a contract of employment on its face, the four corners of the agreement? If it is, then it's exempt from the act. If it's an independent contractor agreement, it's subject to the act. Then the arbitrator would do your honor what you were suggesting. Probe the arguments, was this a legitimate agreement? What was it? And is Mr. Olivera entitled to relief? With that, Mr. Chief Justice, I'd like to reserve my time. Thank you. Thank you, Council. Mr. Chief Justice, and may it please the Court. It's black letter of law that statues are interpreted according to their ordinary, common meeting, not now, but at the time they were passed. And there's overwhelming evidence that in 1925, when the Federal Arbitration Act was passed, the words contract of employment were a general category for agreements to perform work. They included the agreements of common law servants as well as independent contractors. Whether you look at statutes, case law, newspaper articles, even actual contracts themselves, the result is the same, the vast majority of sources called independent contractors agreements to perform work, contracts of employment. And perhaps most relevantly, Congress itself repeatedly used the phrase that way. The Congress passed multiple statutes contemporaneous with the FAA that all used the phrase contract of employment to refer to independent contractors or grievance to perform work. Prime has said nothing about these statutes at all. Instead, Prime dismisses the mountain of sources that used the phrase contract of employment to refer to independent contractors or grievance to perform work as people unthinkingly using the term that way. But that's, in fact, precisely the point. Without even thinking about it, everyone from this Court to Congress to newspaper articles to ordinary contract rafters themselves, everyone understood the category contracts of employment to include the agreements of independent contractors as well as other workers. Does the concept of a contract of employment involving a class of workers, and just a so-and-mine or focused on the term workers? A class of workers engaged in foreign or interstate commerce apply to all independent contractors who are engaged to perform some type of work. It would apply to all independent contractors who are engaged in foreign or interstate commerce. And this Court has said that the class of workers engaged in foreign or interstate commerce is quite narrow, actually. It's people who are directly involved in transporting goods or so closely associated to it to be assumed to be essentially directly involved. So anybody who's involved, there are no distinctions among the types of independent contractors who might be covered? No, Your Honor. As long as there are a worker, then anybody is it? But anybody who does work is a worker. Correct. That's correct, Your Honor. And this makes sense if you look at the historical context and the statutory context when this exemption was enacted. So Circuit City says that the exemption was trying to achieve two goals. The first goal is Congress was trying to avoid conflicts with pre-existing dispute resolution statutes. And the pre-existing dispute resolution statutes enforced at the time define their scope functionally in terms of the work that was performed, not in terms of the worker's employment status. And so if the exemption depended on a worker's employment status, it would create exactly the kinds of conflicts that Congress was trying to avoid. So if you look, in fact, at the Transportation Act, which was the statute that governed railroad workers at the time, and if you look, in fact, at every dispute resolution statute that preceded the Transportation Act, they all define the phrase railroad employees to mean a worker engaged in the work of the railroad. That is, they defined it based on the work that you did, not your technical employment status. May I go back to Justice Alito's question and just give you a hypothetical and say whether your argument includes this, too? So suppose that Amazon contracts with FedEx or UPS to ship all its products, and they want to send their disputes to arbitration. Does that fall within the act or is that fall within this exemption? It would not fall within the exemption. It would be subject to the FAA. And the reason for that is because the FAA required exempts rather a class of workers engaged in foreigner interstate commerce, not companies engaged in foreigner interstate commerce. And FedEx wouldn't be considered a worker. They would be considered a company. And I want to return to what Circuit City said about the goals of this exemption. So just give me a little bit more on that. In every case we have to figure out whether a worker is involved or a company is involved. That's correct. And in most cases that won't be difficult. Here, for example, that's not a disputed issue. And I've seen very, very few cases where that is, in fact, a disputed issue. But it's true that if, in the rare case where it is, the court would have to figure that out. And that's based on the text of the FAA. The FAA says we exempt these kinds of contracts. And so if there are questions about whether a contracted issue is the kind of contract that's exempted, then a court has to figure it out to determine whether the FAA applies before applying it. And to return to the goals of the Act expressed in Circuit City. So we have not conflicting with pre-existing statutes. And we know that those statutes applied functionally. They applied to people's role in work. And I'll note also on that first goal. Even if we interpret those other statutes narrowly to apply solely to common law employees on primed interpretation, the FAA would still conflict with the, with those other statutes. Because even if those other statutes applied only to common law employees, what Prime is saying is the exemption doesn't apply to common law employees. It applies to whatever to people whose contracts say their common law employees, even if they're not. And so you'd have a whole class of people even on Prime's interpretation that would be subject both to these alternative pre-existing alternative dispute resolution statutes as well as the FAA. So anybody whose contract was silent, anybody who was illegally misclassified. And so there'd be a conflict even on Prime's own interpretation of these statutes. And again, we know that these statutes in fact were applied functionally. The historian's brief describes dozens of cases in which the Transportation Act was applied to independent contractors or people working for independent contractors. And the second goal of the statute, as Circuit City explains, beyond the specific conflicts, is that Congress was concerned generally with transportation workers' role in the free flow of goods. The FAA was enacted in the wake of years of labor unrest in the transportation industry that had repeatedly shut down commerce. And I want to note that this labor unrest, Prime says that it was only common law employees of the railroads. That's in fact not true. The shopman strike, which happened just before the FAA was passed, was caused in large part by workers who were not common law servants of the railroads that they were striking against. And so given these years of labor unrest and the havoc that Congress had seen, that people who were not common law servants could wreak, it makes perfect sense that Congress would exempt workers based on their role in the transportation of goods. That is, their ability to shut down commerce rather than their technical employment status that was listed in their contract. It would make no sense at all for Congress to treat workers who had the same ability to disrupt Congress differently simply because of what their contract said. And I want to note that if we take Prime's interpretation, that would also lead us to absurd results. In at least two ways. First, on Prime's interpretation, if a worker's contract is silent, that is, if it doesn't say what your employment status is or not, then it would be impossible to determine whether to apply the contract at all. And second, if a contract misclassified a worker, illegally misclassified a worker as an independent contractor, then the FAA, unlike any other federal statute, would depend on that illegal misclassification rather than the actual worker's status. And so we have the text of the statute, the context of the statute, and the absurd results that would result all leading us, pointing us in the same direction. And quickly, just on the first question, I want to note that I think as your Honors understand, in general, we don't apply statutes that don't apply. And so if a court is going to apply a statute, it has to figure out first whether it applies. I understand. Justice, please. One of the petitioners' argument that forget about the FAA that a court has inherent authority to stay up for seeding pending utilization of an alternate dispute resolution mechanism chosen by the parties. Your Honor, as this Court has repeatedly explained, courts have a duty to exercise the jurisdiction that Congress has granted them. The exceptions to that duty are really under exceptional circumstances. And one of those exceptions could be an ongoing proceeding, but there is no ongoing proceeding here. Courts generally don't have the authority to just stay up for seeding just because they want to or because there might be some proceeding that happens in the future. And I'll note that Prime did not ask the Court to use its inherent authority. Prime solely asked the Court to rely on the FAA. And so the Court has to decide whether the FAA applies to know whether it can grant Prime's request. Well, I understand your friend on the other side not to care about that. Did I? That is how I understood the argument as well. That's correct. And I just want to, yes. Well, while we have here, in response to Justice Alito and Justice Kagan, you raised a very interesting point about the difference between workers and companies. And similar to the kind of question we have here presented between employees and independent contractors, there are going to be fact issues in either circumstance where a district court is going to have to sort them out. The courts disagree over how summary those procedures should be. Let's say we're just in a world of workers versus companies. How would you expect the district court to sort that out? I mean, the FAA is opposed to resolve these things quickly. In a summary fashion section forces, if there's a dispute of whether there is a contract to arbitrate, it's supposed to go to a summary trial, not five years of discovery and all the glories that entails that we're from often painfully familiar with these days. But how would you advise us to write that portion of the opinion if? Your Honor, at first blush, you could look at the contract and it would only require factual, any sort of factual inquiry. If there was a dispute about it, say the contract was a subterfuge or the contract doesn't say anything at all. And in the few cases where this has come up, I believe courts have resolved it largely on declarations. A very limited discovery would be needed to determine whether a person performed the work himself. The question would be, did the parties contemplate that the individual who is suing performed the work himself, him or herself, or did they contemplate that it would be a company? And so that inquiry would require a very limited discovery, if any, at all. So is it safe to say that we have at least common ground on one thing? Maybe a few things today, but at least on this, that the proceedings may not be limited to the form of a document before us, but should be summary in nature. Yes, I agree with that, Your Honor. That's correct. What do you mean by a company? I mean, anything that is not a real person. So, for example, a corporation would be a company. A corporation would be a company. What if it's a sole proprietorship? Then the question would be, what did the parties contemplate that the person who owns the proprietorship would perform the work himself? And if that's true, then it would be an agreement to perform work of a transportation worker. If that's not true. So some independent, I thought you said all independent contractors would fall within this, provided that they were engaged in foreign or interstate commerce in the sense relevant under the FAA. But now I think you're, are you modifying that? So, are you modifying that? Yes, Your Honor. I'm sorry, I misunderstood the initial question. I was talking about people who would be considered workers. So independent contractors who are businesses would not fall within the exemption. And that's based on the text of the exemption. So if they're businesses, what does that mean? I mean, I got you on corporations, but beyond that, are we getting into a difficult area? I think the- It's a sole proprietorship, if it's a partnership, but it's in business. I think it's easiest to approach the question from the other direction, which is to say, was this- did the parties contemplate that the person with whom they agreed would personally perform the work? And if so, then it would be an agreement to perform work with a transportation worker. If the parties didn't contemplate that the person who agreed to do the work would personally do it, then it wouldn't fall within the exemption. And so we don't need to decide the exact definition of business. So is this an agreement for someone who is engaged in commerce to personally perform the work? But to take an opposite extreme from UPS or FedEx, you know, suppose it's like Joe Smith truckers, and Joe Smith truckers is Joe Smith and his brother. And the contract was with Joe Smith workers, and he says, my brother, will do the work. So if the parties contemplated that the brother would do the work, if the brother- if the brother is the one suing, he's likely not bound by the arbitration agreement at all because he won't have been the one to sign it. The business will have been the one to sign it. If Joe Smith is suing, and if then the question would be, did the parties contemplate that Joe Smith was agreeing to perform work as a transportation worker, or did the parties contemplate that Joe Smith was agreeing that this company, somebody at this company, would perform work? And I think that would be the question. And this is a really rare, as this case shows where it's undisputed, it's a really rare situation in which it would come up. And part of the reason for that is if a company agrees to arbitration, then it's hard to say that any individual who wasn't contemplated in the contract would have agreed to arbitration at all. It sort of sounds like what you're saying is that if the person is a real independent contract, and the person is outside of the exemption, but if the entity is not a real independent contractor, which is your argument here regarding Mr. Olvera, it's different. I see if there are individual workers who are independent contractors, and we know there were such workers in 1925 as now, there are individuals who are independent contractors, even if they're bona fide independent contractors, they would be covered within the scope of the exemption. What I'm saying is if there's an agreement that's not of a specific person, a worker to perform work, then they're outside the scope. And I want to quickly address one point that Prime said, Prime says that none of the sources that we have cited are in the context of distinguishing between independent contractors and common law servants. And that's in fact not true. We say dozens of sources that are in that context. In fact, we cite a treatise that is about the law of independent contractors. The reason that's not the majority of sources we've cited is because we've also cited dozens of sources in which in a bunch of different contexts. And so the overwhelming weight of authority in all of these contexts is that a contract of employment was an agreement to perform work. And we were talking about Wisconsin Central before, but what's controversial says is we look at what the ordinary common meaning is. And it's very clear that what an ordinary common person would have understood this exemption to mean in 1925 is that it applied to all agreements to perform work. We don't look at the rare isolated instance. We look at the overwhelming weight of authority, and that means that the agreement is an agreement to perform work. If there. So, Pussy, you went on the issue of arbitrability. The Court says I'm going to decide whether the exemption applies. But then you lose on the issue of the interpretation of the exemption. The Court says it doesn't apply to an independent contractor, Mr. Olvarez, an independent contractor, therefore I'm going to order arbitration. Would the arbitrator then be bound by the determination that he is an independent contractor for purposes of applying the Fair Labor Standards Act? No, Your Honor, for two reasons. First, it would just be an initial decision of who the right decision maker is, and if the Court held that the right decision maker is the arbitrator, then the arbitrator could make that decision. But the second answer is that if a Court were to decide the question of if the Court were to hold that the exemption only applies to common law servants, then it would likely decide that question under the common law. And the Fair Labor Standards Act has a different standard. And so the question on the merits of whether a worker is an employee or an independent contractor is different than the question that would be if the Court interpreted the exemption to be limited to common law servants. And on that point, I do want to note that prime sites, you know, are handful of isolated instances, but in fact none of the sources that prime sites, in fact, support its position, none of those sources say that we look just to the contract to see whether someone is a common law servant. At most, those sources use the phrase contract of employment more narrowly than what we would suggest the ordinary meaning is. But none of them say that if there's reality contrary to the contract, we would look at that. And again, so the both the structure of the statute, the text of the statute and the history all of those factors mean that in 1925, the ordinary person would have understood this exemption to apply to all agreements to perform work of transportation workers. If there are no further questions. Thank you. Thank you, Councilor. Mr. Rutrose, you have five minutes left. Thank you, Mr. Chief Justice. I want to start by saying we agree with Mr. Oliver's position that a determination that this was an independent contract for agreement and therefore could go to our progression would not bind the arbitrator, then we'd go to the merits. Since Councilor left off with the language and history of the statute, let me just go back to the statute. It says contracts of employment. And this court, the read case, which is community for creative nonviolence versus read, this court, this court said, quote, nothing in the text to the work for higher provisions, it was the Copyright Act, indicates that Congress used the words employee in employment to describe anything other than the conventional relationship of an employer and employee, close quote. The court then went on to say that when Congress hasn't put anything in the statute to suggest that something else like any worker doing anything, I'm paraphrasing, then we look to traditional common law agency principles. On pages 10 and 11 of our brief, we responded to the cases and authorities that, that Mr. Oliver decided, with among other things, this court in the copage case, the court declared, does not the ordinary contract of employment, include an insistence by the employer that the employee shall agree as a condition of the employment that he will not be idle and will not work for whom he pleases, but will serve as President and employer and him only so long as the relationship between them shall continue. Was the Copyright Act of the Union, was that the contract at issue? I think so, Your Honor. It was copied, yes, Copyright Act of the Union. And so the court there was clearly making the very distinction we're talking about, that it was well established that a contract of employment was what most people would think. I have a job, I have an employer, they can tell me what to do, they can tell me when I come to work, they can order me to perform tasks. That was- The kind of contract that was involved in copage-free Kansas was outlawed by the National Labor Relations Act, wasn't it? Your Honor, I don't know on that point, but- But the reason we cite it, Your Honor, is that it was well established what a contract of employment was. And the other point I wanted to make was on the alternative dispute resolution provisions that Sir Considie talked about. Again, the court said with respect to each of them, first of all, Congress with the exemption was not seeking to oust certain parties from arbitration. It was protecting arbitration because there were alternative mechanisms. So the exemption itself is pro-arbitration. And in Sir Considie on page 1, 21, 21, with respect to each of the provisions it cited, the court talked about employment relationships, so with respect to the Transportation Act that Council mentioned, talked about the employees under the Federal Law, cited the Transportation Act, Railway Labor Act, employees, the Shipping Commission Act, employers and employees. So this court and Congress were anticipating the traditional employment relationship based on the language of the statute. And with respect to the scope of the provision, in this case, the independent contractor agreement is between new prime and the limited liability corporation that Mr. Olivera formed. So it is an agreement between two businesses and Council saying, and then we have to look and see how the parties contemplated the arrangement would function. But the agreement itself says that Mr. Olivera could hire other employees, could work for other entities. It gave him the right to do that. So from the face of the contract, it gave him all of those rights. And finally, just with respect to the definition of who is an employee and who is not. Because I do think it is relevant. To divorce what Mr. Olivera did was take word contract and find the broadest definition of contract and then employment and find the broadest definition of that and put them together. We cite Black's law dictionary, which says a contract of employment in this, tracking it back to 1927, was an agreement between an employer and employee that states the terms and conditions of employment. But the broadest, this Court has said, has striking breadth. The broadest definition in Federal law of employees and the Fair Labor Standards, the very provision that Mr. Olivera is invoking here and independent contractors are not covered by that definition. So it would be anomalous in the extreme to rule against us on these issues. Thank you very much. Thank you, Council. The case is submitted