Marquette University Law SchoolMarquette Law Scholarly Commons

Faculty Publications Faculty Scholarship

1-1-2000

Does the Federal Arbitration Act Apply toContracts of Employment?Ralph C. AnzivinoMarquette University Law School, ralph.anzivino@marquette.edu

Follow this and additional works at: http://scholarship.law.marquette.edu/facpubPart of the Law Commons

Publication InformationRalph C. Anzivino, Does the Federal Arbitration Act Apply to Contracts of Employment?, 2000-01Term Preview U.S. Sup. Ct. Cas. 76 (2000). © 2000 American Bar Association. This information orany portion thereof may not be copied or disseminated in any form or by any means or downloadedor stored in an electronic database or retrieval system without the express written consent of theAmerican Bar Association.

This Article is brought to you for free and open access by the Faculty Scholarship at Marquette Law Scholarly Commons. It has been accepted forinclusion in Faculty Publications by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.

Repository CitationAnzivino, Ralph C., "Does the Federal Arbitration Act Apply to Contracts of Employment?" (2000). Faculty Publications. Paper 408.http://scholarship.law.marquette.edu/facpub/408

ARB IT RATI ON

Does the Federal ArbitrationAct Apply to Contracts

of Employment?by Ralph C. Anzivino

PREVIEW of United States Supreme Court Cases, pages 76-81. © 2000 American Bar Association.

Ralph C. Anzivino is a professorof law at Marquette University

Law School in Milwaukee, Wis.;RCAnzivino@aol.comor (414) 288-7094.

ISSUEDoes the Exclusion Clause in sec-tion 1 of the Federal Arbitration Actexclude the employment contractsof all workers in interstate com-merce from arbitration, or only thecontracts of workers who transportgoods in interstate commerce?

FACTSCircuit City is a national retailer ofbrand-name consumer electronicsand related products. In March1995, the company implemented anAssociate Issue Resolution Program.This program contained a numberof components, one of which was aprogram of final and binding arbitra-tion of all employment-related dis-putes pursuant to the FederalArbitration Act (FAA). Those indi-viduals who were employed at thetime the program was introducedwere given the opportunity to "optout" of the arbitration component ofthe program. After implementationof the program, all individuals seek-ing employment with Circuit City,as part of the job applicationprocess, were presented with the

Circuit City Dispute ResolutionAgreement (DRA). Any individualwho executed the DRA agreed toresolve "any and all previouslyunasserted claims, disputes or con-troversies arising out of or relatingto my application or candidacy foremployment, employment and/orcessation of employment withCircuit City, exclusively by final andbinding arbitration before a neutralArbitrator." Only those individualswho signed the DRA and agreed tobe bound by its terms had theirapplication for employment consid-ered by Circuit City. Any prospec-tive applicant who executed theDRA but then changed his mindcould withdraw from the agreementto arbitrate by notifying Circuit Citythat he was withdrawing his applica-tion for employment. The DRA pro-vided that "neither this Agreementnor the Dispute Resolution Rulesand Procedures form a contract ofemployment between Circuit Cityand me." The obligation to arbitrateexisted independently of the

CIRCUIT CITY STORES, INC.

v ADAMSDOCKET No. 99-1379

ARGUMENT DATE:

NOVEMBER 6, 2000FROM: THE NINTH CIRCUIT

employment relationship andapplied before, during, and after theemployment relationship. The DRAwas a separate agreement betweenthe prospective applicant andCircuit City.

Saint Clair Adams (respondent)entered into an agreement withCircuit City to arbitrate any and allemployment-related legal claims onOct. 23, 1995, when he executedthe DRA and submitted it with hisapplication for employment. CircuitCity signed the DRA. In November1995, Adams was hired by CircuitCity as a sales counselor in CircuitCity's Santa Rosa store. Adams wasemployed by Circuit City in thatcapacity until he resigned hisemployment on Nov. 30, 1996.

On Nov. 26, 1997, Adams suedCircuit City in a California SuperiorCourt for a variety of employment-related claims-employment dis-crimination, state common lawwrongful discharge, and intentionalinfliction of emotional distress. OnDec. 5, 1997, Adams also soughtarbitration, submitting to CircuitCity an Arbitration Request Formthat described the dispute hewished to have decided by an arbi-trator in the same terms as thecause of action contained in his law-suit. On Jan. 21, 1998, Adams filedan amended complaint in his courtcase incorporating a request fordeclaratory relief with respect to hisrights and obligations under theDRA. Specifically, Adams sought acourt order that the DRA was notenforceable against him on variouslegal grounds. In response, CircuitCity filed a Petition to Stay StateCourt Action and to CompelArbitration in the United StatesDistrict Court for the NorthernDistrict of California. On May 1,1998, the District Court granted thepetition and entered an OrderStaying State Court Action andCompelling Arbitration (unpub-

lished opinion). Respondentappealed the District Court's Orderto the United States Court ofAppeals for the Ninth Circuit.

The Ninth Circuit held that theFederal Arbitration Act was notapplicable to this case. 194 F.3d1070 (9th Cir. 1999). The courtbegan its analysis by referencing itsrecent decision in Craft v.Campbell Soup Co., 177 F.3d 1083(9th Cir. 1999), in which the courtheld that the exclusion found in sec-tion 1 of the FAA for "contracts ofemployment of seamen, railroademployees, or any other class ofworkers engaged in foreign andinterstate commerce" must be readto exclude from the coverage of theFAA all contracts of employment.The Ninth Circuit also reasonedthat because the DRA was a condi-tion precedent to Adams's employ-ment, the DRA was part of theemployment contract. Therefore,the Ninth Circuit reversed the dis-trict court's order compelling arbi-tration and remanded the case fordismissal because of a lack of feder-al authority. Circuit City filed atimely petition for a writ of certio-rari. On May 22, 2000, the SupremeCourt granted Circuit City's peti-tion. Circuit City Stores, Inc. v.Adams, 120 S.Ct. 2004.

The Ninth Circuit is the only circuitto support a broad interpretation ofthe exclusion clause that wouldexclude all employment disputesfrom FAA coverage. Eleven othercircuits have narrowly construedthe exclusion. See Dickstein v.DuPont, 443 F.2d 783, 785 (1st Cir.1971) ("Courts have generally limit-ed this exception to employees ...involved in, or closely related to,the actual movement of goods ininterstate commerce"); Erving v.VA. Squires Basketball Club, 468F.2d 1064, 1069 (2d Cir. 1972) ("Inlight of the strong national policy infavor of arbitration as a means of

settling private disputes we see noreason to give an expansive inter-pretation to the exclusionary lan-guage of [FAA] Section 1"); GreatW Mortgage Corp. v. Peacock, 110F.3d 222, 227 (3d Cir.) ("ITihe onlyclass of workers included within theexception to the FAA's mandatoryarbitration provision are thoseemployed directly in the channels ofcommerce itself"), cert. denied, 522U.S. 915 (1997); O'Neil v. HiltonHead Hosp., 115 F.3d 272, 274 (4thCir. 1997) ("The circuit courts haveinformally reasoned that the strongfederal policy in favor of arbitrationrequires a narrow reading of thissection 1 exemption"); Rojas v. TKCommunications, Inc., 87 F.3d 745,748 (5th Cir. 1996) ("We agree withthe majority of other courts whichhave addressed this issue and con-clude that § 1 is to be given a nar-row reading"); Asplundh TreeExpert Co. v. Bates, 71 F.3d 592,600-01 (6th Cir. 1995) ("We con-clude that the exclusionary clauseof § 1 of the [FAA] should be nar-rowly construed to apply to employ-ment contracts of seamen, railroadworkers and any other class ofworkers actually engaged in themovement of goods in interstatecommerce in the same way thatseamen and railroad workers are");Matthews v. Rollins Hudig Hall Co.,72 F.3d 50, 53 n.3 (7th Cir. 1995)("[Tlhis exclusion is limited totransportation workers ... ");Patterson v. Tenet Healthcare,Inc.,113 F.3d 832, 835 (8th Cir.1997) ("We are persuaded by thereasoning of those circuits whichhave held that section 1 appliesonly to contracts of employment forthose classes of employees that areengaged directly in the movement ofinterstate commerce"); McWilliamsv. Logicon, Inc., 143 F.3d 573, 576(10th Cir. 1998) ("[Tlhe workersengaged in interstate commerceexclusion does not encompass allemployment contracts, just those of

(Continued on Page 78)

American Bar Association

employees actually engaged in thechannels of interstate commerce");Paladino v. Avnet Computer Techs.,134 F.3d 1054, 1060-61 (11th Cir.1998) (per special concurrence ofCox, Circuit Judge, for a majority ofthe court) (narrow construction ofFAA § 1 exclusion "accords with thestatute's text and history"); Cole v.Burns Int'l Sec. Servs., 105 F.3d1465, 1472 (D.C. Cir. 1997)("[Sjection 1 of the FAA excludesfrom the FAA only the employmentcontracts of workers engaged inthe transportation of goods incommerce").

CASE ANALYSISThe Federal Arbitration Act wasoriginally enacted in 1925 and thenreenacted and codified in 1947 asTitle 9 of the United States Code. Itspurpose was to reverse the long-standing judicial hostility to arbitra-tion agreements that had existed atEnglish common law and had beenadopted by the American courts,and to place arbitration agreementsupon the same footing as othercontracts.

Section 2 of the FAA is the scopeprovision. It provides in relevantpart: "A written provision in anymaritime transaction or a contractevidencing a transaction involvingcommerce to settle by arbitration acontroversy thereafter arising out ofsuch contract or transaction ... shallbe valid, irrevocable, and enforce-able, save upon such grounds asexist at law or in equity for therevocation of any contract." 9U.S.C. § 2 (emphasis added).

On the other hand, section 1 of theFAA, which contains the statutorydefinitions, states that "nothingherein contained shall apply to con-tracts of employment of seamen,railroad employees, or any otherclass of workers engaged in foreignor interstate commerce." 9 U.S.C.§ 1 (emphasis added). In other

words, section 2 validates arbitra-tion clauses in contracts "involvingcommerce," and section 1 excludesfrom FAA coverage contracts of sea-men, railroad employees, or anyother class of workers "engaged in"foreign or interstate commerce. Theexclusionary language clearly elimi-nates from the potential reach ofthe FAA all contracts of employ-ment of seamen as a class and allcontracts of railroad employees as aclass. The issue in dispute iswhether the final phrase of the sec-tion 1 exclusion further eliminatesfrom the potential reach of the FAAthe employment contracts of allother workers in interstate com-merce, or only the contracts ofthe limited subclass of workerswho transport goods in interstatecommerce.

Petitioner believes that the narrowconstruction of section 1 is the cor-rect construction. Petitioner arguesit is a fundamental proposition thatin a federal statute regulating inter-state commerce, any words modify-ing the term "commerce" are criti-cal to interpreting the precise scopeof the statute. Sections 1 and 2 ofthe FAA each use a different modifi-er. Section 1 excludes only employ-ment contracts of workers "engagedin" interstate commerce. Section 2includes within the coverage of theFAA all transactions "involving com-merce." The modifiers are obviouslydifferent. Petitioner believes themodifier in section 2's scope section("involving" commerce) is broaderthan the modifier in section l'sexclusion clause ("engaged in" com-merce). Petitioner asserts that incontrast to section 2's broad modifi-er, the section 1 qualifier "engagedin" commerce, is ordinarily under-stood to signify some active anddirect involvement in the conduct ofinterstate commerce. In commonusage, a worker is "engaged in"interstate commerce when he isactively employed in the actual

transporting of interstate com-merce, and not simply when his jobmight have some attenuated or pas-sive connection to interstate com-merce. In other words, the coverageof the FAA should be broadly inter-preted under section 2, and theexclusion of coverage should be nar-rowly construed under section 1.This "broad inclusion/narrow exclu-sion" approach is completely consis-tent with the federal policy favoringarbitration agreements advanced bythe FAA.

Petitioner asserts the rule of ejus-dem generis supports a narrow con-struction of section 1. The rule ofejusdem generis provides that inconstruing a statute, the meaning ofgeneral terms that follow specificones should be limited to "matterssimilar to those specified." The sec-tion 1 reference to contracts ofworkers "engaged in" interstatecommerce does not stand alone. Itfollows immediately upon the iden-tification of two other specific typesof employment contracts excludedfrom coverage-contracts of seamenand contracts of railroad employees.Seamen and railroad employees arealike in that they are both a class ofworkers "actually engaged in themovement of interstate or foreigncommerce or in work so closelyrelated thereto as to be in practicaleffect part of it." Taking a cue fromthe specific mention of those twoclasses of workers, the remaininggeneral category surely refers tothose "other workers" who also areactually engaged in the movementof goods in interstate commerce.

Petitioner asserts that the NinthCircuit's broad construction of theexclusionary clause ignores thewell-established rule of statutoryconstruction that a court shouldavoid a construction that renderswords in a statute surplusage. Abroad construction excludes allemployment contracts. It is argued

Issue No. 2

that such a broad construction ren-ders useless the statutory languagein section 1 of "seamen" and "rail-road employees." The only way togive meaning to all these terms-seamen, railroad employees, andother workers engaged in interstatecommerce-is by reference to whatall these have in common--directinvolvement in the interstate trans-portation of goods.

Despite respondent's assertions tothe contrary, petitioner believesthat the legislative history to sectionl's exclusionary clause is scant andmurky. The bill that became theFAA was drafted by the AmericanBar Association's Committee onCommerce, Trade and CommercialLaw. The original draft of the billdid not contain the exclusion thatlater became a part of section 1, andvery little official discussion of theorigin of the exclusion exists. Thebest indication of the impetus forthe exclusion appears in a report ofthe ABA Committee that indicatesthat the exclusionary clause wasadded to overcome the specificobjection of the seamen's union.The legislative history does notexplain the expansion of the exclu-sionary clause to include railroadworkers or other workers engaged ininterstate commerce. Therefore,petitioner concludes that the legisla-tive history is not instructive, norsupportive of a broad interpretationof the exclusionary clause. In fact,petitioner argues that the scant leg-islative history would support a nar-row construction of section 1because the genesis of the exclusionwas in response to a specific objec-tion from a narrow class of workersinvolved in the transportation ofgoods in interstate commerce.

Petitioner contends that a narrowconstruction of the exclusionaryclause more aptly effectuates theunderlying purpose of the FAA. Byenacting the FAA, Congress articu-

lated a liberal policy in favor of arbi-tration. This federal policy in favorof arbitration should guide theCourt's resolution of interpretiveissues under the FAA. By readingthe FAA section 1 exclusion narrow-ly, the Court would be promoting abroad application of the FAA.Conversely, an expansive reading ofthe section 1 exclusion wouldremove from the scope of the FAAnearly all arbitration agreementsbetween employers and employees.The net effect would be a dramaticreduction in the coverage of theFAA. Clearly, a narrow constructionof the exclusionary clause is moreconsistent with congressional intentto favor arbitration in employer-employee disputes.

Finally, petitioner asserts that theNinth Circuit's broad constructionof the exclusionary clause cannot bereconciled with 50 years of contraryjurisprudence. In 1953, the ThirdCircuit was the first circuit court toanalyze section l's exclusionaryclause. Tenney Engineering v.United Elec. & Mach. Workers ofAmerica, 207 F.2d 450 (3rd Cir.1953). The Third Circuit held thatCongress intended to limit the FAAsection 1 exclusion to the twogroups of transportation workers asto which special arbitration legisla-tion already existed, and theyrounded out the exclusionary clauseby excluding all other similar class-es of workers. Since 1953, 10 othercircuit courts have reached thesame conclusion that the exclusion-ary clause must be narrowly con-strued. The Ninth Circuit standsalone in its broad construction ofthe exclusionary clause and is con-trary to the great weight of 50 yearsof well-established authority.

Respondent believes the legislativehistory is very useful in interpretingthe scope of the exclusionaryclause. Respondent asserts that areview of the legislative history

clearly establishes that the FAA wascreated to be a "commercial arbitra-tion act," not an "industrial arbitra-tion act." The sponsors of the FAA(ABA Committee on Commerce,Trade and Commercial Law) andthe members of Congress who spokeand supported its passage statedthat it was a commercial arbitrationbill intended to deal with disputesarising out of commercial transac-tions. The legislative history doesnot contain a single reference sug-gesting that the FAA was intendedto cover employment disputes. Infact, respondent indicates that labordid object to the inclusion of work-ers' contracts in the FAA, whichprecipitated the insertion of the sec-tion 1 exclusionary clause. Againstthat background, respondent con-cludes that the only rational readingof section 1 is that Congress intend-ed to exclude all contracts ofemployment from coverage.

Respondent also asserts that a broadconstruction of the exclusionaryclause was specifically intended byCongress's use of the term "engagedin commerce." The statutory lan-guage identifies the class of exclud-ed workers as those "engaged incommerce." In its early-twentiethcentury commerce clause cases, theSupreme Court used the phrase"persons engaged in commerce" todescribe the entire class of personsconstitutionally subject to the com-merce power. See SecondEmployers Liability Cases (Mondouv. New York, N.H.R. Co.), 223 U.S.(1912). Against that jurisprudentialbackground, in 1925 Congress wasaccustomed to invoking its full com-merce power through the statutoryterm "engaged in commerce." Forexample, the Federal Employers'Liability Act, the Safety ApplianceAct, and several provisions of theClayton Act used the phrase"engaged in" to identify broad class-es of persons and companies cov-

(Continued on Page 80)

American Bar Association

ered by each statute. The FAA's sec-tion 1 exclusion is a contemporaryof those statutes. In 1925, the term"engaged in" commerce was under-stood to state the full reach of thecommerce power with regard toworkers. Therefore, Congress's useof that phrase in section 1 evi-dences its intent to exclude allemployment contracts that it couldconstitutionally reach. A broadreading of the exclusionary clause isthus consistent with Congress'sintent.

From a historical context, respon-dent argues that a narrow reading ofsection 1 cannot be squared with abroad reading of section 2. First,respondent notes that the phrase"involving commerce" in section 2was not a commerce clause term ofart in 1925, much less a term withan established broad meaning. Thephrase "involving commerce" hadnever been used in a commerceclause provision prior to 1925 andhas never been used since. Also, theterm "involving commerce" is notdefined in the FAA to have any spe-cial meaning. In the common par-lance of 1925, "involving" and"engaged" were used as synonyms.Dictionaries of the period defined"engaged" as "involved" and defined"engage" as to "involve oneself" orto "become involved." Understoodin this historical context, Congressthus used the term "involving com-merce" to express the same com-merce power reach as the term ofart "engaged in commerce."Therefore, Sections 1 and 2 shouldboth be accorded a broad construc-tion, not a broad/narrow construc-tion as suggested by petitioner.

Respondent also contends that peti-tioner's construction-to broadlyconstrue section 2 and narrowlyconstrue section 1-is a paradox.Petitioner's construction of the sec-tion 1 exclusion as being limitedonly to transportation-of-goods-in-

commerce workers cannot be sup-ported. First, respondent notes thatthere is nothing in the legislativerecord or in logic that would explainwhy Congress would have singledout only the employment contractsof transportation-of-goods-in-com-merce workers to be excluded.Second, under petitioner's readingof section 1, those employment con-tracts most involving interstatecommerce, and thus most assuredlywithin the commerce clause powerin 1925 (viz., contracts of employ-ees engaged in interstate transporta-tion), are excluded from FAA cover-age while those employment con-tracts having a less direct and lesscertain connection to interstatecommerce would come within theact's affirmative coverage. Limitingcoverage to those contracts leastevidently within the reach of thefederal constitutional authority jus-tifying federal regulation is so anom-alous that the Supreme Courtshould not attribute such an intentto Congress without the clearestevidence.

Respondent argues that petitioner'sejusdem generis argument is refutedby the express language of theexclusionary clause. The exclusion-ary clause references "any otherclass of workers." This language is aterm of breadth, not a term of limi-tation. The respondent asserts thatwhen Congress uses the phrase "anyother" to describe a residual catego-ry, it does so to indicate that thecategory stands on its own, unlimit-ed by reference to prior statutoryterms. See Harrison v. PPGIndustries, Inc., 446 U.S. 578(1980). Therefore, in the absence oflegislative history to the contrary,the phrase "any other" in the exclu-sionary clause must be construed tomean broadly what it says-"anyother." Any attempt to limit thebreadth of the specific language byan ejusdem generis argument

directly contradicts the expressstatutory language.

Finally, the respondent contendsthat this case is as much about fed-eralism and the states' power to reg-ulate workers' contracts as it isabout the enforceability of employ-ment arbitration provisions.Regulation of the individual employ-er-employee relationship has longbeen the province of the states.Generally, Congress is not presumedto have intended to displace statelaw, absent a clear statement to thecontrary. Similarly, the SupremeCourt starts with the assumptionthat the historic police power of thestates is not to be superseded absenta clear mandate from Congress. Astatutory construction that Congresspreserved the states' authority toregulate individual employment con-tracts will allow the states to decideissues of enforceability and proce-dure under their own laws pursuantto their own policies. An expansiveinterpretation of the exclusionaryclause will preserve the states' tradi-tional role in resolving employer-employee disputes.

Numerous amicus briefs were filedin this case. Those briefs in supportof the petitioner offer a number ofpolicy reasons to support a narrowconstruction of the exclusionaryclause. First, they argue that the useof arbitration has become firmlyentrenched in our country's work-place culture and should be encour-aged. Second, multistate employersneed uniform policies that would beavailable under the FAA. State arbi-tration laws are not uniform andvary dramatically from state tostate. Third, a broad construction ofthe exclusionary clause would addthousands of employer-employeedisputes to an already clogged andoverburdened court system. Theapplicable axiom is "Justice delayedis Justice denied." And finally, it isin the best interest of employees,

Issue No. 2

employers, and society to resolveemployer-employee disputes in anexpeditious, fair, and cost-effectiveprocess. It has been estimated thatarbitration results in a 50 percentcost saving for the parties and thatthe average arbitration involves 8.6months as compared to 3-5 years incourt.

Similarly, the amicus briefs in sup-port of the respondent offer a num-ber of policy reasons to support abroad construction of section l'sexclusion. They argue that employ-ers use arbitration to cause employ-ees to forgo substantive rights.Where the equality of bargainingpower in the employer-employeerelationship is totally lacking,employers often include unfair oroppressive provisions in the arbitra-tion agreement that penalize theemployee. The employee may firstbe required to litigate the unfair oroppressive arbitration clause andthen address the merits of theemployee's claim. The net effect isto place the employee at a consider-able disadvantage in obtaining a fairresolution to his claim. Also, theyassert that the states should not bedivested of their traditional role asthe principal protector of the rightsof workers. Absent a clear congres-sional intent to preempt, one estab-lished principle of federalism is todisfavor the displacement of tradi-tional areas of state law, such asemployment.

SIGNIFICANCEThe expanding use of arbitration toresolve conflicts has had a dramaticimpact on dispute resolution in theUnited States. Arbitration is under-stood to be a much faster and lessexpensive process for resolving dis-putes than litigation in the courts. Ithas been estimated that on averagearbitration is one-half the cost andtakes one-quarter the time to pro-ceed through trial. In addition,

another significant advantage ofarbitration is that appeals are rela-tively rare.

The employer-employee relationshipis one of the cornerstones of ourcountry. Numerous disputes arise inthe employment relationship. A fewexamples are wrongful discharge,claims of discrimination, and issuesof contract interpretation. Manyemployers have selected arbitrationunder the FAA as the preferredmechanism to resolve these work-place disputes. Section 1 of the FAA,however, contains an exclusionclause that excludes certain speci-fied contracts from FAA coverage. Abroad interpretation of the clausewill exclude disputes arising from allemployment cofitracts from arbitra-tion under the FAA. Claimants/employees would, therefore, be freeto pursue their employment-relatedclaims in state court. A narrowinterpretation of the clause wouldexclude only a small class of work-ers in interstate commerce fromcoverage under the FAA. The vastmajority of employer-employee dis-putes would continue to be eligiblefor arbitration under the FAA. Thedynamics of dispute resolutionbetween employers and employeesmay be vastly altered by theSupreme Court's decision.

ATTORNEYS FOR THE

PARTIESFor Circuit City Stores, Inc. (DavidE. Nagle (804) 343-4077)

For Saint Clair Adams (MichaelRubin (415) 421-7151)

AMicus BRIEFS (AS OFOCT. 6)

In Support of Circuit City Stores,Inc.

The Council for EmploymentLaw Equity (Garry G. Mathiason(202) 842-3400)

Texas Employment Law Council(W. Carl Jordan (713) 758-2258)

Chamber of Commerce of theUnited States of America (LawrenceZ. Lorber (202) 416-6800)

Employers Group (Daniel H.Bromberg (202) 879-3939)

In Support of Saint Clair AdamsThe National Academy of

Arbitrators (David E. Feller (510)642-0629)

American Association of RetiredPersons (Thomas W. Osborn(202) 434-2060)

The Association of Trial Lawyersof America (Jeffrey Robert White(202) 965-3500)

Brief of Law Professors (David S.Schwartz (608) 262-2240)

Brief of Division of LaborStandards Enforcement,Department of Industrial Relations,State of California (William A. Reich(805) 654-4647)

Lawyers' Committee for CivilRights Under Law, NAACP LegalDefense and Educational Fund, Inc.,National Association for theAdvancement of Colored People,Mexican American Legal Defenseand Educational Fund, NationalPartnership for Women & Families,National Women's Law Center, andNew Legal Defense and EducationFund (Paul W. Mollica (312) 263-0272)

United States (Seth P. Waxman,Solicitor General, U.S. Departmentof Justice (202) 514-2217)

American Bar Association