Flowers Foods depends in part on franchisees such as Angelo Brock who buy the distribution rights to Flowers’s products in specific geographic territories. Brock picks up Flowers’s products from a warehouse in Colorado and delivers them to local stores, all without leaving the State.

When Brock sued Flowers, Flowers moved to compel arbitration. The trial court declined, holding that Brock was in a class of workers “engaged in . . . interstate commerce.” The Supreme Court agreed.

The statutory text does not support a rule requiring workers to cross state lines or interact with vehicles that do.

Crowther v. Board of Regents (05/18/2026) [Briefs]

There is a 3-4 split of authority among the federal Circuit Courts.

The employer moved to confirm, and the employee moved to vacate.

The issue was whether the district court retained jurisdiction without a showing that either motion presented a federal question or satisfied the requirements for diversity jurisdiction.

A unanimous US Supreme Court said “Yes.” Jules v. Andre Balazs Properties (US Supreme Ct 05/14/2026) [PDF].

Nothing in the Federal Arbitration eliminated the district court’s jurisdiction while the parties arbitrated.  When the parties returned to court after arbitration with §9 and §10 motions, the court had the same jurisdiction to decide the case, and thus jurisdiction to decide those motions, that it possessed from the start.

The court rejected the employer’s argument that the EFAA permits victims of workplace sexual harassment to avoid arbitration, but does not extend to those who provide information about workplace sexual harassment during an investigation.

The court pointed out that the EFAA defines a “sexual harassment dispute” as “a dispute relating to conduct that is alleged to constitute sexual harassment.”

This appears to be the prevailing interpretation.

The US Supreme Court granted certiorari on 04/27/2026 to decide whether DOL’s adjudication proceedings to collect monetary remedies from employers is authorized by 8 U.S.C. §1188(g)(2), and whether they are precluded by Article III.

Supreme Court briefs
3d Circuit opinion

 He was sworn in as a Member on January 7, 2026, for a term expiring on December 16, 2027.

Mr. Murphy returned to the Board after a distinguished career at the National Labor Relations Board with over 47 years of service. Mr. Murphy began at the Board as a student law clerk in 1974 and served as counsel to numerous Board members over the decades. Most recently, he served as Chief Counsel to former Chairman Marvin Kaplan.

2. The arbitration agreement delegated the question of the agreement’s validity to an arbitrator to decide.

3. But the trial court denied a motion to compel arbitration due to a severability clause.

4. And the trial court took it upon itself to excise an unconscionable provision.

The 9th Circuit reversed the trial court’s judgment denying a motion to compel arbitration, vacated the judgment that the parties’ arbitration agreement was unconscionable, and ordered arbitration. The trial court should not have addressed the unconscionability issue in the first place, but instead should have enforced the delegation clause requiring an arbitrator’s resolution.

Sandler v. Modernizing Medicine (9th Cir 03/19/2026) [PDF]

The NLRB found that the employer committed unfair labor practices that interfered with a union election. As a remedy, the Board ordered the employer to bargain. The 6th Circuit upheld the ULP finding but denied enforcement of the bargaining order.

The bargaining order was based solely on the NLRB’s 𝘊𝘦𝘮𝘦𝘹 decision under which the Board issues a bargaining order even though there is no finding that the unfair labor practices made a fair election unlikely or impossible.

The court held that the Cemex standard was created through an unlawful exercise of adjudicatory authority because it was not created as a means to resolve the parties’ dispute or undo the effects of the parties’ violative conduct. The court said, “to formulate such a general, forward-looking policy that does not serve its case-specific remedial responsibilities, the Board would need to use the rulemaking process.”

The case is Brown-Forman v. NLRB (6th Cir 03/06/2026) [PDF]

You can get your very own update for Lindemann, Grossman and Weirich, Employment Discrimination Law (BNA – Sixth Edition 2020), courtesy of Paul Grossman at Paul Hastings. The UPDATE is organized by book chapter, and brings the book up-to-date through February 2026 (but date on this UPDATE reads “March 2026”).

Just send a request to Paul Grossman’s secretary, Cathy Smith-Joo cathysmithjoo@paulhastings.com

This gives you some idea of where she is going.

This includes claims that accrued prior to the effective date of the Act, and claims other than sexual assault or sexual harassment.

Bruce v. Adams & Reese (6th Cir 02/25/2026) [PDF] and Hansbrough v. Marshall Dennehey PC (Ohio Ct App 02/26/2026) [PDF].

There are other cases reaching the same result, and I’m not aware of any that disagree.

The current winner is Geo Group v. Menocal (US Supreme Ct 02/25/2026) [PDF]

A former detainee at a privately operated ICE facility sued the operator claiming violation of a federal bar on forced labor and Colorado's prohibition on unjust enrichment.

The operator's defense was that it was not liable for conduct that the Government has lawfully "authorized and directed" the contractor to perform. The operator appealed from the trial court's ruling that the Government did not instruct adoption of those policies. The 10th Circuit dismissed for lack of jurisdiction, holding that the trial court's order did not qualify for interlocutory review.

The US Supreme Court affirmed. Federal contractors have a potential merits defense rather than an immunity from suit, so a pretrial order denying protection is not immediately appealable. The finality rule of 28 U. S. C. §1291 precludes interlocutory review.

Boring, but definitely a nice win for the plaintiff.

That issue sounds a bit nerdish, yet it’s an important jurisdictional question that has split the federal Circuit courts.

The 2nd Circuit held that a federal court’s pre-arbitration exercise of jurisdiction serves as an anchor that gives the court continuing jurisdiction over a subsequent Section 9 or 10 application, even if jurisdiction would otherwise be lacking.

The case is Jules v. Andre Balazs Properties. The 2nd Circuit opinion is attached to the petition for a writ of certiorari HERE.

The court said, “the NLRB and MSPB wield substantial powers that are both executive in nature and different from the powers that Humphrey’s Executor deemed to be merely quasi-legislative or quasi-judicial.  So, Congress cannot restrict the President’s ability to remove NLRB or MSPB members.”

Harris v. Bessent (DC Cir 12/05/2025) [PDF].

Paul Grossman just sent out a 118 page Employment Discrimination Law Update. If you practice employment law, this is something you must have. It’s thorough, objective, accurate, and easy to read.

The UPDATE is a personal supplement to the book he coauthored – Lindemann, Grossman and Weirich, Employment Discrimination Law (BNA – Sixth Edition 2020). The UPDATE is organized by book Chapter, and is current through October 2025. 

In an act of great generosity, Paul sends this out periodically during the year to those who ask for it. Simply send your full contact information to Paul's secretary Cathy Smith-Joo: cathysmithjoo@paulhastings.com.

Paul Grossman is a partner at Paul Hastings, and is based in Los Angeles. He is a management-side employment lawyer and a frequent speaker on employment law.

Commenting on federal Circuit Courts' reactions to Thryv, Inc., 372 NLRB No. 22 (2022)
Also on YouTube https://youtu.be/cILqPyZUgNQ

The US Supreme Court has granted certiorari to review another arbitration case. Flower Foods, Inc. v. Brock (Cert granted 10/20/2025) [Briefs].

The issue: Are workers who deliver locally goods that travel in interstate commerce—but who do not transport the goods across borders nor interact with vehicles that cross borders—“transportation workers” “engaged in foreign or interstate commerce” for purposes of the Federal Arbitration Act’s § 1 exemption?

The facts are simple:

Flowers Foods produces baked goods that are sold in supermarkets, drug stores, and convenience stores throughout the United States. Angelo Brock owns a Colorado corporation that purchased the rights to market, sell, and distribute Flowers products in territories entirely within Colorado.  Brock orders products from Flowers, and Flowers then delivers those products to a warehouse in Colorado, where they are unloaded by Flowers.  Brock then picks up the products from the warehouse and delivers them to his customers.  Most of the products Brock delivers are shipped to the warehouse from out of state. But Brock’s territory is entirely contained within the State of Colorado. He never crosses state lines to deliver Flowers products.  Nor does he unload products when they arrive at the warehouse from out of state.

Brock sued claiming Flowers misclassified him as an independent contractor rather than an employee. Flowers moved to dismiss Brock’s lawsuit in favor of arbitration. The District Court held that Brock falls within Federal Arbitration Act § 1 and held the FAA inapplicable on that ground. The court reasoned that Brock is actively engaged in the transportation of Flowers’ products across state lines into Colorado because he places orders for products that arrive from out-of-state bakeries and then delivers those products to his Colorado customers. The 10th Circuit affirmed.

Just last year the Supreme Court looked at a similar fact pattern and held that a transportation worker need not work in the transportation industry to be exempt from coverage under §1 of the FAA. Bissonnette v. LePage Bakeries (US S Ct 04/12/2024) [PDF].

Look for an oral argument early in 2026, and a decision by July.