The New Jersey Supreme Court has agreed to hear appeals in a pair of conflicting arbitration rulings over whether the New Jersey Arbitration Act applies to employees who are exempt from the Federal Arbitration Act.

In Arafa v. Health Express, the Appellate Division held in an unpublished June 5 decision that a mandatory arbitration agreement does not apply to wage-and-hour claims by truck drivers who deliver pharmaceuticals under §1 of the Federal Arbitration Act, which exempts certain workers from arbitration if their jobs involve foreign or interstate commerce.

The other case, Colon v. Strategic Delivery Solutions, also concerns truck drivers bringing wage-and-hour claims. A different panel of the Appellate Division, in a published ruling on June 4, sent the case back to a trial court for a determination on whether plaintiffs were engaged in interstate commerce and, therefore, exempt from arbitration under §1 of the FAA. The panel in Colon also said that if the FAA doesn't apply, the New Jersey Arbitration Act applies and requires arbitration. The FAA exemption that applied to plaintiffs in the Arafa and Colon cases was spelled out by the U.S. Supreme Court in a January ruling, New Prime v. Oliveira,

Ravi Sattiraju, a Princeton labor and employment lawyer, represents the plaintiffs in both Arafa and Colon. Sattiraju said he hopes the state Supreme Court will find that the New Jersey Arbitration Act does not apply if it is not specifically referenced in any agreement between workers and management.

"What we want the court to do is say that if you don't specifically bargain for an arbitration to be conducted under the New Jersey Arbitration Act, it's not going to be implied," Sattiraju said.

The ruling in Arafa concerns a class of truck drivers who deliver pharmaceutical products around New Jersey. The named plaintiff was classified as an independent contractor but he claimed his employer failed to pay him for all the hours he worked and withheld money from him. A panel consisting of Judges Carmen Messano, Douglas Fasciale and Lisa Rose, relying on New Prime, ruled the plaintiff's employment contract was exempt from the FAA and "all other arbitration issues are moot."

But in Colon, the panel of Judges Richard Hoffman, Karen Suter and Lisa Firko said that if the FAA did not apply, the New Jersey Arbitration Act requires arbitration of the plaintiff's claims.

The lawyer for the defendant in Colon, Richard McGovern of Genova Burns in Newark, finds it "curious" that the Supreme Court decided to hear his case without allowing it to return to the trial court for a determination on whether the truck driver plaintiffs are engaged in interstate commerce and therefore exempt from arbitration under §1 of the FAA. McGovern said he believes the Appellate Division did the right thing and that the "meeting of the minds" between parties that has been held requisite to a valid arbitration agreement in New Jersey does not extend to which laws apply to the circumstances.

McGovern said he was heartened at the approach taken by the U.S. Court of Appeals for the Third Circuit last month in another case disputing applicability of an arbitration agreement, Singh v. Uber.

In that case, the appeals court overturned an order enforcing an arbitration clause and remanded the case to the trial court for a determination on whether the plaintiff and class members were engaged in interstate commerce.

"It's curious that the court has decided to do this because an easy thing for the court to do was simply to have agreed with the Appellate Division that the lower court had to make a determination if [plaintiffs were engaged in] interstate commerce," McGovern said.