well your argument next in case seventeen three forty new prime versus old vienna mr bush wants mr chief justice and make please the court the first circuit held that independent contractor agreements or contracts of employment and therefore they were exempt from the federal arbitration this reading of section ones 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 that govern an employer and employee relationship in the section one 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 circus just about the word war worker in the very clause shall apply to contracts of employment of seamen railroad employees or any other class of workers engaged in foreign or interesting commerce congress didn't use the word employees if it meant employees use a much broader term workers but shouldn't that inform what it meant by contract of employment i think it does your honor that a contract them 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 now he said apply to any other class of workers not employees means and if it meant only employees congress naturally i would assume would have used the word any other classified for use but instead choose a much broader word workers well your i think was we have ever argued the fact that the railway railroad employees also are is is mentioned right before that seaman which are traditionally common law master servant employees demonstrate  pointed out that under the seaman act it covered people who were not contracts of seamen 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 to find semen under the jones act as in actions in the course of their employment and its employees of the pilot qualify as seaman who are outside the federal situation act even though they're independent contractors really justice ginsburg i think that the physician example is a good one the case that has been cited by the respond it didn't involve the question of independent contractor or anything like that it was the question was of 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 seam in it 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 trade 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 when now in the sense that it was a major transportation work period in that case yes your honor that was that was the issue but the overall thrust if if on page one twenty to one twenty one  circuit city the court in talking about seaman railroad employees air carrier air carrier places who were or added to the railway labor act in the one nine hundred thirty five 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 we you keep in your brief when the or the other side raises this concern you quickly shifted discussion of contracts and pointed 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 it's employment and employment in many of these contacts has a broader scope than the existence of an employee employer relationship it's absolutely true there are many different definitions of employment out there but as i said  if the court's decision in a national mutual insurance company versus darden which we've cited and in the community community for creative nonviolent versus reed case which darden cite says that congress we're going to assume that a congress uses employee and garden but in read 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 the problem is that we don't really of the cases the vast bulk of them if they didn't they did a good job of cataloguing haphazard in passing uses of contract of employment world wasn't an issue so in describing a case about an attorney in a client a court years ago it's called  contract of employment well what we do about the fact that less haphazardly you're your colleague on the other side has documented that back in one nine hundred twenty five which is when the statute was enacted and i think you'd agree that we have to interpret it as a reasonable reader would have at that time didn't necessarily distinguish between independent contractors and employees with the degree of care the law has subsequently come to use and maybe even that your own client doesn't use according to its website it speaks of employing i believe that i can't remember the exact variation of the word but it treats these independent contractors as employment so what we do we do about the fact that that is at available reading still today and there's a lot of historical evidence that the time of the statute in question that contract employment may have slipped more broadly a couple things justice courses first i don't agree with respondent that that the independent contractor contract of employment stinks or was not well established it was deeply embedded this court's decision the cop edge case which we cite in our reply brief specifically rhetorical e x as if everyone would know about this distinction we cited  cutting to treatise from one nine hundred twenty it had an entire chapter called contracts of employment and it made the explicit distinction and this court has over the years cited mr continents cases that contracts of employment were different  the issue the distinction was well established are again responded to cite a lot of authorities were just wasn't a discussion or issue in the need for a narrow construction of section one in order to prove that the pro arbitration policies of the a 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 the congressman contract of employment and i think it's also important that it's been nearly one hundred years in no court had ever decided that the words contracts of employment which are pretty clear means something completely different the first circuit and the of era contend that those words mean agreement to work but if congress just to sort of i had wanted to say agreement to work they 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 trysts the gateway question who decides this we believe that the court's cases like rent a center and first options and 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 arbitrary and that's what this is  agree we admit we concede that it's a bit different than some of the court's cases so that the kindred nurseries case that rule where the court ruled that the federal operation act did apply to a contract when that there was a the sense that the party there was arguing the opposite of creation it doesn't trigger 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 courts to our main concern about what the district court did originally was talked to rule that correct first rule correctly that contracts and this was not a contract of employment so the it that that issue needed to be looked at and but then the court said there would be discovery and then  trial to determine whether the exemption applied and we respectfully submit that the prophet 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 what the it whether  the really merits of the case the mr oliver is argument that is that in in actual fact he was he was an employee and the way the relationship in practice functioned so that's the merit so for require to  trial in federal district court about that issue in 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 as to butros you've moved nicely to the merits  just to so we haven't ignored that where we've moved so quickly in response to justice ginsburg's question and i share the same concerns so perhaps you can help me before a court can do anything in order under section four compelling arbitration that's what you want as an order from the district court pelling arbitration i would have thought it would have had to satisfy itself it had the power to issue such an order and section one has this carve out and why isn't it more like a challenge to the delegation provision itself if you want to use read the center as your authorities i believe you do rather than to challenge the underlying contract if we're going to make an analogy i would have thought the analogy would work the other way help me i i think your honor i have to say that is another analogy and it's and it's one that it's another way the court could go but here that the presumption is kind of been flipped on us 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 has the power inherent power to stay  specifically order specific performance of an agreement aside from the federal arbitration act but i do recognize that we're asking and that issue for the court to take another step and pivoting back to the merit on that point it's the respondent who's asking for an up he will basically are they argue that every word in the except 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 up a decent case that money could be interpreted and more broadly but that wasn't the ordinary usage and the court said is money is it really ordinary say money means everything here the mr all there is basically are in the contract of employment every type of we saying that the arbitrator will decide arbiter billet there are different degrees of arbitron billet it's one thing to say for example if you have an agreement we'll arbitrate all disputes on the plant floor and then you know the company builds another extension of it in that 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 are compel arbitration and all 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 a federal district court and interpret the conficker this court could do it if the contract is an independent contractor agreement on its face so so i i do think it is a different in korea we have and there this court has never or not you're looking to their intent and contract document when you decide whether they're procedural bars for this arbitration you are looking to interpret a contract again which will have the thing there right here we are not doing that we are interpret ing a statute and there is no reason or you see that i mean it is 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 one nine hundred twenty five and before work 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 one nine hundred twenty five and so that is not just a dictionary word that saying what they're after is trying to exclude argument between employee ease not in interstate commerce etc and their employers from this statute the n l r b or its predecessors or early other methods are available for labor arbitration if you take that as a than the necessary when you and i do think if we look at the descent in circuit city was making a 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 in the labor peace issues were employees striking in the battles between the railroad men and the unions but the argument that the independent contractors that is here error is correct he'd be entitled to further relief on the fair labor standards act which is one of the provisions he's suing under we disagree with out and the other point justice ginsburg is that here it's net out much more in pay they have freedom and flexibility and it may be that it didn't turn out well for mr all over and if he's right i want to make this clear the arbitration process needs to be fair and he would have mr all there a new prime would put their cases on to an arbitrator and if he's right he'll prevail if new primes correct it will prevail in these arbitration proceedings can produce significant awards multiple people will bring the actions i'm 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 and crown on this is i understand i've been pondering your answer the question i ask a while ago did i understand you court were to rule that independent contractor agreements are not contracts of employment but we need a court either this court of the district court to decide that as i said we trust courts to make that determination i musta missed it i think there was a lot of fighting over the question of whether a court or an arbitrator should decide the arbiter ability in this case i thought that was the first question presented that that is the first question presented we stand out here i'm not abandoning it but the main problem we have with what the district court ordered the principle 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 an independent contractor agreement is a contract of employment the statute focuses on the contract not on the activities and so the first step we would respectfully submit if the court rejects argument about arbiter billet it would be to rule that this goes back to the district court or this court rules on the 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 is there any other area where we say the parties leavell employee versus independent contractor and give that binding effect iow i thought for virtually every other purpose in a 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 employee or an independent contractor i i can't think of one but here we have the unique circumstance where the statute focuses on the contracts and it's just as prior as making the point this was back in one thousand nine hundred five others will sensitivity about commerce power and so here the statute focuses on the contracts and i go back to dargon and read and the nine hundred fifteen decision that cited in those cases for robinson which i think they can only get you as far as letting the arbitrator decide whether aren't i hear 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 all of era the power to can work for yes in the end on that point your honor in terms of determining whether it's arbitrary was 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  face the four corners of agreement if if it if it is then it's exempt from the act if it's an independent contractor agreement it's subject to the act then you arbitrator would do your honor what you were suggesting probe the arguments was this a legitimate agreement what mr chief justice and may it please the court it's black letter law that statutes are interpreted according to their ordinary common meeting not now but at the time they were passed and there's overwhelming evidence that in  twenty five when the federal average haitian 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 call 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 f a a that all use the phrase contracts of employment to refer to and dependent contractors agreements to perform work crime has said nothing about these statutes at all instead prime dismisses the mountain of sources that use the phrase contract employment to refer to independent contractors agreements 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 drafters themselves everyone understood the category contracts of employment to include the agreements of independent contractors as well as other workers  of a a contract of employment involving a class of workers and just the sort of mine are focused on the charm workers a class of workers engaged in a foreign or interstate commerce apply 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 this court has said that the class of workers in gaijin 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  doesn't and there are no distinctions among the types of independent contractors who might be covered no your honor as long as there are worker and 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 in the statutory context when this exemption was in acted so circuit city says that the exemption was trying to achieve two goals the first goal this congress was trying to avoid conflicts with preexisting dispute resolution statutes and the preexisting dispute resolution statutes in force at the time defined their scope functionally in terms of the work that was performed not in terms of the workers 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 proceed at 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 products and they want to send their disputes to arbitration does that fall within the actor is that from within this exemption it would not fall within the exemption it would be subject to the f a a and the reason for that is because the f a a require exams rather a class of workers in gauged in foreign or interstate commerce not companies engaged in foreign or interstate commerce and fed ex it wouldn't be considered a worker they would be considered a company and i want to return to what circuit city said about 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 f a a the f a a says we exempt these kinds of contracts and so if there are questions about whether a contract issue is the kind of contract that's exempted then a court has to figure it out to determine whether the f a a applies before applying it and to return to the goals of the act expressed in circuit city so we have not conflicting with preexisting 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  even if we interpret those other statutes narrowly to apply solely to common law employees and crimes interpretation the f a would still conflict with the with those other statutes because even if those other statutes applied only  common law employees would prime it saying is the exemption doesn't apply to common law employees it applies to whatever to people whose contracts say they're common law employees even if they're not and so you have a whole class of people even on primes interpretation that would be subject both to these alternative preexisting alternative dispute resolution statutes as well as the f a a so anybody who's contract was silent anybody who was legal misclassified and so there'd be a conflict even on primes own interpretation of these statutes and again we know that the statute in fact were applied functionally but historians brief describes dozens of cases in which the transportation app was applied to independent contractors or people working for independent contractors and the second goal of the statute as circuit city explains beyond these specific conflicts is that congress was concerned generally with transportation workers role in the free flow of goods the f a a 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 railroads that's in fact not true the shopman strike which happened just before the f a a 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 are not common law servants could read 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 employments that is 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 in this differently simply because of what their contract said and i want to know that if we take himes interpretation that would also lead us to absurd results you know these two ways first on primes 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 is an independent contractor then the f a a unlike any other federal statute would depend on that the legal misclassification rather than the actual workers status and so we have the text of the statute the context of the statute and the absurd results that would result all leaving us pointing us in the same direction and on the quickly just on the first question i want to know that i think as your honour's 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 resolution mechanism chose in the department your honor is 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 the authority to just stay a proceeding just because they want to or because there might be some proceeding that happens in the future and all know that crime did not ask the court to use its unfair and forty crimes soli asked the court to rely on the f a a and so the court has to decide whether the f a a applies to know whether it can grant here in response to justice alito and just as kagan you raise a very interesting point about the difference between workers and companies and it's similar to the kind of question we have your presented between employees and independent contractors there are going to be fact issues in either circumstance where district court's going to have to sort them out the courts disagree over how summary those procedures should be let's say we're just in the world of workers first says companies  how would you expect the the district court to sort that out i mean the f a a is supposed to resolve these things quickly in a summary fashion section four says if there's a dispute over whether there is a contract arbitrate it's supposed to go to a summary trial not could look at the contract and it would only require factual any sort of factual inquiry if there was a dispute about it you know say the contract was a subterfuge or the contract doesn't say anything at all and in the few cases where this is come up i believe courts have resolved it largely and declarations a very limited discovery would be needed to determine whether a person perform the work himself the question would be did the parties contemplate that the individual who is suing performs the work himself him or herself or did they contemplate that it would be a company and so that inquiry would require 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  document for us but should be summary in nature yes i agree with that your honor that's correct what do you mean by what do you mean by company i mean and anything that is not a real person so for example a corporation would it would be a kind of 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 themselves 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 f a a but now i think your are you modifying that so are you modifying the 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 for with their businesses what does that mean i mean i got you on corporations but beyond that we're getting into a difficult area i think that it's a sole proprietorship 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 order if the parties didn't contemplate but 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 it just is this an agreement for someone who is engaged in commerce to personally perform  of an opposite extreme from u p s or fed ex you know suppose a slave joe smith truckers and joe smith truckers as joe smith and his brother and and the contract was with joe smith workers and he says my brother will do the work so if if the parties contemplated that the brother would do that work if the brother if the brothers 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 say if joe smith is suing and if so 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 would perform work and i think that would be the question and this is a really rare is 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's sort of sounds like what you're saying is that if the person is a real independent contractor are individual workers who are independent contractors and we know there were such workers in one nine hundred twenty five as now there are individuals who are independent contractors even if they're bonafide 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 time 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 you say the treaties 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  agreement to perform work and we were talking about wisconsin essential before it was contraception all says is we book at what the ordinary common meaning is and it's very clear that what an ordinary common person would have understood th hundred twenty five is that 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 remit is an agreement to perform work there suppose you win on the issue of arbiter below what 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 over there is an independent contractor therefore i'm going to order arbitration with the arbitrator then we're back now and by the determination that he is an 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 and on that point i do want to note that prime cites you know a handful of isolated instances but in fact none of the sources that i'm cite 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 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 he would look at that and again to the both the structure of the statute the text of the statute and the history all of those factors mean that in one nine hundred twenty five the ordinary person would have understood this exemption to apply to all agreements to perform work of transportation workers if the agreement and therefore could go to our pressure would not bind the arbitrator then we go to the merits since counsel it left off with the language in history the statue let me just go back to cut to the statute that says contracts of employment and this court the reed case which is community for creative nonviolence versus read this court this court said quote nothing in the text of the work for hire provisions was the copyright act indicates that congress used the words employee and 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 ten and eleven of our brief we responded to the the cases and authorit that that mr old recited with among other things this court in the cop edge 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 employment that he will not be idle and will not work for whom he pleases but will serve as president lawyer and him only so long as the relationship between them shall continue with the c 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 they can order me to perform tasks that one new contract that was involved in topping the kansas was outlawed by th reason we cited it your honor is that it was well established what a contract of employment wasn't in and the that the other point i wanted to make was on the alternative dispute resolution provisions that circuit city 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 itself is pro arbitration and in circuit city on page one twenty one twenty one with respect to each of the provisions it cited the court talked about employment relationship so with respect to the transportation at that that counsel mentioned talked about the employees under the federal law site of the transportation railway labor act employees the shipping  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 all vera 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 all of it or 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 those rights and  finally just with respect to the definition of what who's an employee and who's not because i do think it's relevant to divorce what kind what that mr oliveri did was take word contract and find the broadest definition of contract and then invoking here an 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 counsel the case is submitted