Adkins v. Labor Ready Inc , 303 F.3d 496 ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CURTIS M. ADKINS, 
Plaintiff-Appellant,
and
LEE AYERS; ANGELO BAILEY; DANIEL
BALLENGEE; BOBBY BELCHER;
LAWRENCE BENTZ; LARNIE BODDY,
JR.; JOHN BURGESS; ERIC CONLEY;
JAN COURTS; CHERYL DAVIS; GLENN
DAVIS; PHILLIP DAVIS; MICHAEL N.
DISHNER, SR.; JAMES DONALDSON;
ALEXANDER DORAN; BRUCE DULING;
BLAKE FRIEND; HARRY GAYNOR;
CHRISTOPHER GREENE; JAMES
HAIRSTON; GAIL HARPER; EDWARD  No. 01-2304
HARVEY; FLOYD D. HATFIELD, SR.;
LELAND L. HOLMAN; SHAUN JEFFRIES;
ERIC JUSTICE; JAMES JUSTICE; CRAIG
KUTZNER; LINDA KUTZNER; JOSEPH
LEGG; FREDDIE LEONARD; THOMAS
LEVANDOWSKI; TIMOTHY LILLARD;
FARRIS MALLO; JOEL MARIN; DONTAE
MASON; RODMAN L. MATTHEWS;
JOHN MCDANIEL; VALERIE MCGILL;
JASON MEANS; DWIGHT NEAL
MOSLEY; GEORGE PAPPAS; DONNA
PAULEY; DANNY PECK; BRIAN PENCE;
ASA PERPALL; GARY PULLEN;
TIMONTHY RAMSEY; LARRY RICHARDS;

2 ADKINS v. LABOR READY, INC.
ANGELA RENEE ROTON; NORMAN G. 
ROY, III; ROGER SMITH; ERTHEL
SMOOT; RUFUS SPILLMAN; ANDREW
STRUM; RONALD TEET; KENNETH
TERRELL; PAMELA THAXTON; GORDON
THOMAS; CRAIG TOLLEY; CHAD
WATSON; WILLIAM WILSON; RONNIE
S. ZORNES; TINA ROBERTS ZORNES, 
Opt-in Plaintiffs-Appellants,
v.
LABOR READY, INCORPORATED; LABOR
READY MID-ATLANTIC, INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CA-00-844-2)
Argued: June 4, 2002
Decided: August 30, 2002
Before WILKINSON, Chief Judge, WILKINS, Circuit Judge,
and Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Wilkins and Judge Goodwin joined.
COUNSEL
ARGUED: Mary Georgia McQuain, LAW OFFICES OF STUART
CALWELL, P.L.L.C., Charleston, West Virginia, for Appellants. Carl
ADKINS v. LABOR READY, INC. 3
H. Trieshmann, SCHNADER, HARRISON, SEGAL & LEWIS,
L.L.P., Washington, D.C., for Appellees. ON BRIEF: Stuart Calwell,
LAW OFFICES OF STUART CALWELL, P.L.L.C., Charleston,
West Virginia, for Appellants.
OPINION
WILKINSON, Chief Judge:
Curtis Adkins filed suit against Labor Ready, Inc. and Labor Ready
Mid-Atlantic, Inc. (collectively "Labor Ready") alleging violations of
federal and state labor laws. Labor Ready responded with a motion
to compel arbitration based on an arbitration agreement signed by
Adkins. The district court granted the motion, Adkins v. Labor Ready,
Inc., 185 F. Supp. 2d 628 (S.D.W. Va. 2001), and dismissed the case.
Because the arbitration agreement is enforceable and all of Adkins’
claims are arbitrable, we affirm.
I.
Labor Ready is a temporary employment agency that provides
manual day labor to companies throughout the United States. It has
hundreds of dispatch offices, all of which operate under a strictly regi-
mented "Work Today, Paid Today" employment procedure. Tempo-
rary employees report to work at the Labor Ready office before the
start of the workday, where they wait on the premises until jobs are
assigned to them. They receive work tickets at the home office and
then travel to a Labor Ready customer’s job site. At the end of each
workday, the customer signs the employees’ work tickets, whereupon
the employees return to Labor Ready to receive immediate payment.
Employees can choose payment either by check drawn upon a non-
local bank or by cash. For cash payments, a fee of between one and
two dollars is deducted.
Adkins alleges that Labor Ready’s dispatch and payroll procedures
violate the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C.
§ 201 et seq., West Virginia’s Minimum Wage and Maximum Hours
Standards for Employees, W. Va. Code § 21-5C-1 et seq., and West
4 ADKINS v. LABOR READY, INC.
Virginia’s Wage Payment and Collection Act, W. Va. Code § 21-5-1et seq. He brought this suit as a proposed FLSA class action, filing
approximately sixty-three consent forms from current and former
Labor Ready employees wishing to join the action as plaintiffs.
Adkins contends that Labor Ready employees were statutorily enti-
tled to payment for waiting time at Labor Ready’s dispatch office,
travel time between that office and the assigned workplace, and time
spent undergoing required training. Further, he claims that if this
amount of time was added to each employee’s workweek, many
employees would be entitled to overtime pay. He also alleges that
Labor Ready employees were entitled to compensation for the cost of
commuting to and from job sites at the prevailing rate of $.35 per
mile. Additionally, he asserts that Labor Ready’s means of payment,
involving a deduction for cash payment, was itself contrary to law.
Labor Ready filed a motion to compel arbitration and stay proceed-
ings based on an arbitration agreement signed by Adkins and every
other Labor Ready employee. This agreement, contained in Labor
Ready’s Policy Regarding Dispatch Procedures, Employment and
Arbitration ("the Policy"), must be signed by all potential employees
as part of the job application before they may join Labor Ready’s pool
of temporary workers. The Policy is contained within an enclosed box
on the employment application. It provides in pertinent part:
I understand that my employment with LABOR READY,
INC. is on a day-to-day basis. That is, at the end of the work
day, I will be deemed to have quit unless and until I request
and receive a work assignment at a later date.
I agree that any disputes arising out of my employment,
including any claims of discrimination, harassment or
wrongful termination that I believe I have against Labor
Ready and all other employment related issues (excluding
only claims arising under the National Labor Relations act
[sic] or otherwise within the jurisdiction of the National
Labor Relations Board) will be resolved by arbitration as
my sole remedy. The arbitration shall be conducted by the
American Arbitration Association under its Commercial
Arbitration Rules and the decision of the arbitrator shall be
ADKINS v. LABOR READY, INC. 5
final and binding. I understand that Labor Ready also agrees
to arbitrate in the same manner any claims which the com-
pany believes it has against me.
I HAVE READ AND AGREE TO THE ABOVE STATE-
MENTS.
Relying on the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16,
Labor Ready argues that the arbitration agreement was valid, covered
Adkins’ claims, and should be enforced.
The district court agreed and ordered the parties to submit Adkins’
claims to arbitration in accordance with the terms of the arbitration
agreement. The court then dismissed the action on the ground that all
of the issues presented in the suit were arbitrable. See Choice Hotels
Int’l v. BSR Tropicana Resort, 252 F.3d 707, 709-10 (4th Cir. 2001).
Adkins appeals.
II.
The FAA reflects "a liberal federal policy favoring arbitration
agreements." Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 24 (1983). Underlying this policy is Congress’s view that
arbitration constitutes a more efficient dispute resolution process than
litigation. Hightower v. GMRI, Inc., 272 F.3d 239, 241 (4th Cir.
2001). Accordingly, "due regard must be given to the federal policy
favoring arbitration, and ambiguities as to the scope of the arbitration
clause itself resolved in favor of arbitration." Volt Info. Sciences, Inc.
v. Bd. of Tr. of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76
(1989).
The FAA requires a court to stay "any suit or proceeding" pending
arbitration of "any issue referable to arbitration under an agreement
in writing for such arbitration." 9 U.S.C. § 3. This stay-of-litigation
provision is mandatory. A district court therefore has no choice but
to grant a motion to compel arbitration where a valid arbitration
agreement exists and the issues in a case fall within its purview.
United States v. Bankers Ins. Co., 245 F.3d 315, 319 (4th Cir. 2001).
6 ADKINS v. LABOR READY, INC.
Thus mindful of the "clear federal directive in support of arbitra-
tion," Hightower, 272 F.3d at 242, we proceed to the analysis of the
district court’s order compelling arbitration.
III.
In the Fourth Circuit, a litigant can compel arbitration under the
FAA if he can demonstrate "(1) the existence of a dispute between the
parties, (2) a written agreement that includes an arbitration provision
which purports to cover the dispute, (3) the relationship of the trans-
action, which is evidenced by the agreement, to interstate or foreign
commerce, and (4) the failure, neglect or refusal of the defendant to
arbitrate the dispute." Whiteside v. Teltech Corp., 940 F.2d 99, 102
(4th Cir. 1991). Adkins contests the second element, denying the exis-
tence of a binding contract to arbitrate this dispute.
It is clear that "even though arbitration has a favored place, there
still must be an underlying agreement between the parties to arbi-
trate." Arrants v. Buck, 130 F.3d 636, 640 (4th Cir. 1997). Whether
a party agreed to arbitrate a particular dispute is a question of state
law governing contract formation. First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 944 (1995). We turn initially, therefore, to
West Virginia contract law to determine whether the employment
application mandates arbitration of Adkins’ claims as a contractual
matter. We review the trial court’s decision on this issue de novo. See
Arnold v. United Cos. Lending Corp., 511 S.E.2d 854, 860-61 (W.
Va. 1998).
A.
Adkins first argues that there was no exchange of consideration to
support the formation of a contract based on the employment applica-
tion. By its terms, however, the arbitration clause requires both
Adkins and Labor Ready to arbitrate any employment-related claims
either might have. Because "no consideration [is required] above and
beyond the agreement to be bound by the arbitration process" for any
claims brought by the employee, Johnson v. Circuit City Stores, 148
F.3d 373, 378 (4th Cir. 1998), Labor Ready’s promise to arbitrate its
own claims is a fortiori adequate consideration for this agreement.
ADKINS v. LABOR READY, INC. 7
Adkins argues that this promise was "illusory" but advances no
convincing reasons to support this assertion. His contention that
Labor Ready has no reciprocal rights against its employees under
worker protection provisions, while obviously true, does not by itself
demonstrate that Labor Ready’s promise to arbitrate its own claims
is meaningless. At bottom, Adkins appears to contend that Labor
Ready could possess no conceivable claims against its at-will employ-
ees, ignoring the fact that in every employment relationship, each side
bears reciprocal obligations to the other. See, e.g., Am. Jur. 2d
Employment Relationship § 222 (2002) (employee liable to employer
for any profit received as the result of a breach of employee’s duty
of loyalty). There was plainly adequate consideration here to support
the formation of a contract.
B.
Adkins also asserts that the employment agreement was an uncon-
scionable contract of adhesion under West Virginia law. He points to
evidence in the record that many of the plaintiffs did not complete
high school, were paid at or near the minimum wage by Labor Ready,
live in low-income neighborhoods, and did not know what arbitration
was when they signed the employment application. He further notes
that Labor Ready is a large, sophisticated, international corporation
that generated more than $850 million in revenues during the year
before this suit was brought. In light of this gross disparity in bargain-
ing power and the take-it-or-leave-it nature of the employment appli-
cation, he argues that the arbitration agreement is unenforceable.
A ruling of unconscionability based on this analysis alone could
potentially apply to every contract of employment in our contempo-
rary economy. The West Virginia courts recognize that "it is not the
province of the judiciary to try to eliminate the inequities inevitable
in a capitalist society." Troy Mining Corp. v. Itmann Coal Co., 346
S.E.2d 749, 753 (W. Va. 1986). Unconscionability in West Virginia
therefore requires both "gross inadequacy in bargaining power" and
"terms unreasonably favorable to the stronger party." Id. at 753 (inter-
nal citations omitted). A finding "that the transaction was flawed . . .
still depends on the existence of unfair terms in the contract. A liti-
gant who complains that he was forced to enter into a fair agreement
8 ADKINS v. LABOR READY, INC.
will find no relief on grounds of unconscionability." Arnold, 511
S.E.2d at 861 n.6 (quoting Troy Mining Corp., 346 S.E.2d at 753).
We therefore review the contract for any unfair terms, bearing in
mind that "the grounds for revocation must relate specifically to the
arbitration clause and not just to the contract as a whole." Hooters of
America, Inc. v. Phillips, 173 F.3d 933, 938 (4th Cir. 1999). Adkins’
claim of unfairness hinges on his argument that the arbitration agree-
ment forecloses redress of his underlying substantive rights. The
agreement, however, does no such thing.
Certainly no agreement to arbitrate can be construed on its face as
an inherent waiver of a litigant’s statutory rights. The entire point of
the FAA was to "reverse the longstanding judicial hostility to arbitra-
tion agreements that had existed at English common law." Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991). There is thus
a clear federal command that courts cannot treat arbitration in general
as an inferior or less reliable means of vindicating important substan-
tive rights. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473
U.S. 614, 628 (1985). Nor is there any allegation that this specific
arbitral forum is so procedurally unfair as to inject substantive bias
into the process itself. Hooters, 173 F.3d at 938.
Instead, Adkins argues that the arbitration clause forecloses redress
of his rights because it effectively precludes access not only to the
courts, but even to the arbitration forum itself. He contends it does so
by the interaction of two factors: the fee structure of Labor Ready’s
arbitration procedure and its preclusion of class actions. Adkins
claims that arbitration costs are so high and the amounts at stake for
each individual plaintiff so low that no plaintiff would be willing to
gamble on victory in arbitration.1 He further asserts that plaintiffs can-
not circumvent this problem by aggregating their claims for the sake
of economic efficiency because Labor Ready’s arbitration procedure
does not permit class actions.
1
Adkins does not, however, argue that he would pay more in fees than
he could receive in damages. It is undisputed that plaintiffs prevailing
under the FLSA are awarded both attorney’s fees and the cost of the
action, 29 U.S.C. § 216(b), even in arbitration. See Gilmer, 500 U.S. at
27-28 (litigants retain all substantive statutory rights in arbitral forum).
ADKINS v. LABOR READY, INC. 9
It is certainly possible that "the existence of large arbitration costs
could preclude a litigant . . . from effectively vindicating her federal
statutory rights in the arbitral forum." Green Tree Fin. Corp.-
Alabama v. Randolph, 531 U.S. 79, 90 (2000); cf. Brooklyn Sav. Bank
v. O’Neil, 324 U.S. 697 (1945) (contractual waiver of FLSA rights
void as against public policy). However, where a party "seeks to
invalidate an arbitration agreement on the ground that arbitration
would be prohibitively expensive, that party bears the burden of
showing the likelihood of incurring such costs." Green Tree, 531 U.S.
at 92. Adkins has not come close to satisfying that burden here.
Adkins makes no showing of the specific financial status of any of
the plaintiffs at the time this action was brought. He provides no basis
for a serious estimation of how much money is at stake for each indi-
vidual plaintiff. In fact, he does not even provide any evidence about
the most basic element of this challenge: the size of the allegedly
"prohibitive" arbitration fee itself. Adkins’ plea that he could not do
this because the district court cut off discovery is unconvincing. It
was within his power to obtain this information by simply investigat-
ing the option of arbitration in the first place. He cannot seriously
claim to be in court because the arbitration fee is too high at the same
time that he pleads ignorance about what the actual amount of the
arbitration fee might be.
Nor are we moved to a contrary conclusion by the fact that two dis-
trict courts have found specific cost-sharing provisions in other arbi-
tration agreements to be unconscionable. Giordano v. Pep Boys—
Manny, Moe & Jack, Inc., No. 99-1281, 2001 WL 484360 (E.D. Pa.,
Mar. 29, 2001); In re Knepp, 229 B.R. 821 (Bankr. N.D. Ala. 1999).
Merely listing "fees incurred in cases involving other arbitrations"
does not indicate that Adkins himself "would in fact have incurred
substantial costs in the event [his] claim went to arbitration." Green
Tree, 531 U.S. at 91 n.6.
Adkins’ failure to carry his burden of proof under Green Tree ren-
ders his further complaint about the inability to bring a class action
moot. As the Third Circuit has held, "simply because judicial reme-
dies are part of a law does not mean that Congress meant to preclude
parties from bargaining around their availability." Johnson v. West
Suburban Bank, 225 F.3d 366, 377 (3d Cir. 2000) (Truth in Lending
10 ADKINS v. LABOR READY, INC.
Act claims are arbitrable even if class action mechanism is unavail-
able); see also Randolph v. Green Tree Fin. Corp.-Alabama, 244 F.3d
814 (11th Cir. 2001) (same). Adkins points to no suggestion in the
text, legislative history, or purpose of the FLSA that Congress
intended to confer a nonwaivable right to a class action under that
statute. His inability to bring a class action, therefore, cannot by itself
suffice to defeat the strong congressional preference for an arbitral
forum.
C.
Adkins’ third contractual challenge lies in his assertion that the
contract is grounded in a mutual mistake. Specifically, he argues that
the parties were mistaken about whether the contractual relationship
actually terminated at the end of each day. The Policy provides that
"at the end of the work day, [employees] will be deemed to have quit
unless and until [they] request and receive a work assignment at a
later date." Adkins argues, however, that we have previously held this
same "deemed to have quit" provision to be without legal force. See
NLRB v. Labor Ready, Inc., 253 F.3d 195 (4th Cir. 2001) ("deemed
to have quit" clause does not terminate employee status under NLRA
provisions guaranteeing employees’ right to unionize). In light of that
decision, Adkins argues, "the ‘realities of the workplace’ at Labor
Ready were different from the terms and conditions set out in the
employment application." He contends that this constitutes a mutual
mistake as to a material assumption which underlies a contractual
agreement.
Even if Adkins’ interpretation of NLRB v. Labor Ready were cor-
rect, this argument misconceives the nature of mutual mistake. In
West Virginia, the doctrine of mutual mistake applies where parties
enter into a contract "while laboring under a mistake of material fact."
Capitol Chrysler-Plymouth v. Megginson, 532 S.E.2d 43, 49 (W. Va.
2000) (quoting Brannon v. Riffle, 475 S.E.2d 97, 101 (W. Va. 1996))
(emphasis added). But the court’s decision in NLRB v. Labor Ready
was a conclusion of law, not a determination of fact. We cannot
accept the novel proposition that litigants can use a court’s reading of
a contract as a bootstrap to invalidate that same contract on the basis
of mutual mistake. Such a principle would render the act of judicial
contract interpretation equivalent to rescission whenever one party
ADKINS v. LABOR READY, INC. 11
disagrees with the outcome. Neither of the cases cited by Adkins sup-
port his argument. McGinnis v. Cayton, 312 S.E.2d 765 (W. Va.
1984) (mistaken appraisal of value of natural gas); Bluestone Coal
Co. v. Bell, 18 S.E. 493 (W. Va. 1893) (mistaken belief about exis-
tence of coal veins on leased property). Both cases involved mutual
mistakes of fact, and Adkins fails to allege any mistake of fact in this
case.
D.
Adkins next contends that even if the arbitration agreement initially
created a binding contract, that contract terminated at the end of the
first day and therefore does not require arbitration of his claims. He
begins with the incontestable proposition that the FAA applies only
to written agreements to arbitrate a dispute. 9 U.S.C. § 2. He further
notes that the only written agreement in this case was the Policy that
Adkins signed on his first day at Labor Ready. Since that Policy also
included the "deemed to have quit" clause, Adkins contends that the
contract necessarily terminated at the end of that first day — and with
it, any agreement to arbitrate. Moreover, he argues that even if the
terms of the original oral contract implicitly rolled over to a new oral
contract commencing at the start of each working day, any such con-
tract was not written and is therefore not covered by the FAA.
This argument confuses two distinct concepts. It is true that the
employment was deemed to terminate at the end of each day for such
purposes as determining at-will employee status. It is an entirely dif-
ferent matter to argue, however, that the contract governing the inter-
actions over time between these two economic actors likewise
terminated after each day. The employment application does more
than govern a single day’s work. Rather, it sets the framework for the
entire business relationship between Labor Ready and its incumbent
workers, creating the ground rules that will govern their interactions
both before and after job assignments have actually been parceled out.
This is demonstrated by its extensive discussion of such issues as con-
fidentiality, attendance policies, sign-in procedures, down time usage,
and procedural requirements for the daily assignment process. Indeed,
Adkins concedes as much when he acknowledges that "the incumbent
workers of Labor Ready engaged in a continuing employment rela-
tionship with Labor Ready rather than a series of disconnected
12 ADKINS v. LABOR READY, INC.
moments of employment." In the same sense that "employee status [at
Labor Ready] abides overnight" for the purposes of the NLRA not-
withstanding the "deemed to have quit" clause, NLRB v. Labor Ready,
253 F.3d at 199, the Policy governing the rules of engagement
between Labor Ready and its incumbent workers also continues in
force until the relationship itself is severed.
E.
Finally, Adkins contends that since the agreement to arbitrate was
contained in an employment application rather than a post-hire writ-
ing, it cannot create binding contractual obligations. This argument is
squarely foreclosed by Circuit City Stores v. Adams, 532 U.S. 105(2001). In that case, the Supreme Court explicitly held that an arbitra-
tion agreement contained in an employee application compelled the
arbitration of the signer’s employment discrimination claims. Id. at
109-10. We see no reason to reach a different result with the employ-
ment application in the present case.
This argument actually bears an unfortunate similarity to many of
Adkins’ efforts throughout this litigation. Many of Adkins’ claims
invite us to push the parameters of state law so as to frustrate the
intent of the FAA. This in turn implicates the Supremacy Clause at
its core. The FAA’s "liberal federal policy favoring arbitration agree-
ments," Moses Cone, 460 U.S. at 24, means that states cannot single
out arbitration agreements for disparate treatment under their laws. If
we were to stretch West Virginia contract law to invalidate this arbi-
tration agreement, we would be doubly guilty of overstepping our
bounds: not only in expanding state precedent, but by doing so in pur-
suit of an outcome that the state itself is not permitted to authorize.
IV.
Even if the arbitration agreement satisfies West Virginia’s law of
contract formation, Adkins argues that it is nonetheless unenforceable
on several unrelated statutory grounds. We find none of them con-
vincing.
ADKINS v. LABOR READY, INC. 13
A.
Adkins first contends that § 1 of the FAA exempts him from the
requirements of that statute. Under § 1, the FAA’s pro-arbitration pol-
icy does not apply to disputes arising out of "contracts of employment
of seamen, railroad employees, or any other class of workers engaged
in foreign or interstate commerce." 9 U.S.C. § 1. This exception "ex-
empts from the FAA only contracts of employment of transportation
workers." Circuit City v. Adams, 532 U.S. at 119; see also O’Neil v.
Hilton Head Hosp., 115 F.3d 272, 274 (4th Cir. 1997) (limiting § 1’s
coverage to "workers actually involved in the interstate transportation
of goods"). Adkins argues that because some of the plaintiffs were
occasionally assigned ("and/or are subject to being so assigned") to
clients in the transportation industry, his case falls within the category
of transportation workers more generally and is therefore exempt
from the FAA.2
As the district court noted, Labor Ready’s employees work in the
areas of "construction, landscaping, warehousing, catering, moving,
hotel, stevedoring, [and] light industrial markets." Adkins, 185 F.
Supp. 2d at 643. Some categories in this laundry list can be construed
as including work related to the interstate transportation of goods.
However, § 1 of the FAA represents a narrowly targeted exception to
a well-established, broad preference in favor of arbitration. As such
it must be construed narrowly. Circuit City v. Adams, 532 U.S. at 118.
Adkins does not contend (and the evidence does not show) that a
majority or even a plurality of the plaintiffs’ daily assignments were
in transportation-related industries. In fact, under the apparent princi-
ple of Adkins’ complaint, if a Labor Ready employee had been
assigned to even a single transportation-related job during his entire
tenure at the company, he should be exempted from the FAA. To
apply the term "transportation workers" in that way stretches it past
the breaking point. Plaintiffs thus do not qualify as transportation
workers and are therefore not entitled to exemption from the FAA
under § 1.
2
We cannot take seriously Adkins’ further claim that he is a transporta-
tion worker because he occasionally took other Labor Ready employees
with him to a job site.
14 ADKINS v. LABOR READY, INC.
B.
Adkins further contends that the FLSA itself precludes mandatory
arbitration of his federal claims because FLSA claims are categori-
cally immune from mandatory arbitration. For this argument to suc-
ceed, he must show that Congress intended to preclude waiver of a
judicial forum for FLSA claims by pointing to the text of the FLSA,
its legislative history, or an "inherent conflict" between arbitration
and the FLSA’s underlying purposes. See Gilmer, 500 U.S. at 26.
Adkins does not argue that either the statutory text or legislative
history evince a congressional intent to require courtroom resolution
of FLSA claims. He contends instead that the purposes and structure
of the FLSA directly conflict with the FAA’s pro-arbitration policy.
However, the FLSA’s remedial purposes and enforcement scheme are
very similar to that of the Age Discrimination in Employment Act
(ADEA), a statute that the Supreme Court has already concluded does
not pre-empt the FAA. See Gilmer, 500 U.S. at 23. Not only are the
FLSA’s purposes broadly remedial in the same sense as the ADEA,
compare 29 U.S.C. § 202 with 29 U.S.C. § 621, but the ADEA actu-
ally incorporates large sections of the FLSA’s enforcement structure
by reference. 29 U.S.C. § 626(b).
Adkins attempts to distinguish the two by noting that ADEA com-
plainants must begin by filing a formal claim with the EEOC before
commencing court action. See 29 U.S.C. § 626(d). But this fact alone
hardly compels a different "inherent conflict" analysis under the
FLSA than under the ADEA. Certainly it does not indicate, as Adkins
seems to suggest, that access to the courts is somehow more important
for FLSA plaintiffs than for ADEA plaintiffs. Since the Supreme
Court has already held that the FAA is compatible with the ADEA,
Gilmer, 500 U.S. at 27, we reject Adkins’ structural argument that
there is an inherent conflict between the FAA and the FLSA.
The cases Adkins cites in support of this proposition are likewise
inapposite. In particular, Barrentine v. Arkansas-Best Freight Sys.,
450 U.S. 728 (1981), was limited to the case of collective-bargaining
arbitration and was thus rooted in substantive concerns that simply do
not apply to the present case. See, e.g., id. at 742. And of course Bar-
rentine was followed by Gilmer’s and Adams’ endorsement of arbitra-
ADKINS v. LABOR READY, INC. 15
tion as a substantively equivalent means of resolving statutory claims
pertaining to employment. See Kuehner v. Dickinson & Co., 84 F.3d
316, 319-20 (9th Cir. 1996); Carter v. Countrywide Credit Indus., 189
F. Supp. 2d 606, 609-14 (N.D. Tex. 2002). We therefore hold that
FLSA claims may properly be resolved in mandatory arbitration pro-
ceedings.
C.
Adkins concludes by arguing that his state statutory claims may not
be arbitrated because West Virginia precedent precludes arbitration of
human rights claims. See Copley v. NCR Corp., 394 S.E.2d 751, 756
(1990). Whatever force Copley may formerly have had, its ruling on
arbitration cannot trump Gilmer and Circuit City v. Adams. The
Supremacy Clause precludes any argument to the contrary.
V.
Adkins’ claims amount to little more than an attempt to undermine
repeated pronouncements by Congress and the Supreme Court that
federal law incorporates a liberal policy favoring arbitration agree-
ments. A refusal on our part to heed these pronouncements would be
a dereliction of our duty under law. The judgment of the district court
is therefore
AFFIRMED.