In a wage-and-hour dispute, defendant’s truck drivers contend that they are employees to whom the FLSA applies and that their contracts are for employment in interstate commerce so that they are exempt from the FAA.  In an earlier decision in the same case, the 9th Circuit held that the district court must determine whether the contracts are exempt from the FAA before ruling on the defendant’s motion to compel arbitration.  After remand, the district court entered a scheduling order setting a discovery schedule and setting the FAA exemption issue for trial.  The defendant appealed seeking to overturn the scheduling order since it contended the FAA exemption issue should be decided as a matter of law and without evidence. Defendant contended that the scheduling order had the practical effect of denying arbitration since in deciding whether defendant’s contracts with its truck drivers were contracts of employment rather than contracts with independent contractors, the district court would decide the same issue that was key to liability on the merits under the FLSA.  This decision holds that the scheduling order is not appealable.  The order did not finally decide whether to compel arbitration and so is not appealable under either 9 USC 16 or 28 USC 1291.

Ninth Circuit Court of Appeals (Thomas, C.J.; Ikuta, J., concurring); July 26, 2016; 2016 WL 3997257