Reconsidering the Employment Contract Exclusion in Section 1 of the Federal Arbitration Act: Correcting the Judiciary\u27s Failure of Statutory Vision

The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960\u27s, arbitration gained momentum during the 1970\u27s and the 1980\u27s. Despite growing judicial enthusiasm for arbitration and enhanced development of arbitrability doctrine, several oddities remain: the continued presence of non-statutory “public policy” exceptions to arbitrability; the neglected development of the common law bases for avoiding defective arbitration agreements; procedural excesses; and sometimes insufficient standards of review. Perhaps the most serious but infrequently discussed glitch in Arbitration Act jurisprudence, however, involves the employment contract exception to the reach of the Act. Section 1 of the Act, in addition to defining commerce and “maritime transactions” encompassed by the Act, provides: “Nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.