Rembert v. Ryan’s Family Steak Houses, Inc

Cavanagh, J.

(dissenting). I respectfully dissent. I agree with Justice Cavanagh’s opinion in Heurtebise v Reliable Business Computers, Inc, 452 Mich 405 ; 550 NW2d 243 (1996), and the majority in Rushton v Meijer, Inc (On Remand), 225 Mich App 156 ; 570 NW2d 271 (1997), that Michigan’s longstanding public policy entitling civil rights plaintiffs to direct review of their claims in the courts cannot be abrogated by *167 contract. Accordingly, I would reverse the trial court’s order granting summary disposition for defendants.

I. MICHIGAN’S CONSTITUTION AND PUBLIC POLICY ENSURES CIVIL RIGHTS PLAINTIFFS ACCESS TO THE COURTS

In his opinion in Heurtebise , Justice CAVANAGH set forth in detail Michigan’s “long history of stalwartly defending individuals from invidious discrimination in their pursuit of basic civil liberties . . . [and] faithfully defending an aggrieved individual’s right to a judicial forum to remedy unlawful discrimination.” Heurtebise, supra at 414 . In this section, I do not attempt to duplicate Justice Cavanagh’s excellent chronicle of Michigan’s vigorous and sustained protection of its citizens’ civil liberties. Rather, I merely emphasize some of the significant events in Michigan’s civil rights jurisprudence in order to demonstrate that requiring employees to waive prospectively their right to pursue civil rights claims in a judicial forum is inconsistent with Michigan’s declared public policy.

Our Supreme Court has stated that civil rights claims should be given the “highest priority.” Holmes v Haughton Elevator Co, 404 Mich 36, 46 ; 272 NW2d 550 (1978). The importance attached by the Court to the protection of civil rights is not a recent phenomenon. Over a century ago, the Supreme Court held in Ferguson v Gies, 82 Mich 358, 364-365 ; 46 NW 718 (1890), that the rule by which a restaurant owner required black persons to sit in a separate area of the restaurant violated the common law of Michigan, as well as the civil rights act of 1885, 1885 PA 130 . Moreover, the Court held that the plaintiff in Ferguson had the right to pursue a private civil suit for damages *168 despite the fact that the statute did not provide a specific right of action for civil damages. The Court explained that the statute merely codified the common law, under which the plaintiff’s “right of action for any injury arising from an unjust discrimination against him is just as perfect and sacred in the courts as that of any other citizen.” Id. at 365 (emphasis added).

In subsequent cases, the Court reiterated that where illegal discrimination has occurred, the victim has a civil right of action for damages, even where the civil rights statute does not specifically provide a right to damages for the injury. See St John v General Motors Corp, 308 Mich 333, 336 ; 13 NW2d 840 (1944) (gender discrimination); Bolden v Grand Rapids Operating Corp, 239 Mich 318, 328 ; 214 NW 241 (1927) (racial discrimination). In Pompey v General Motors Corp, 385 Mich 537, 560 ; 189 NW2d 243 (1971), the Court held that the plaintiff could maintain a civil damage action for redress of his statutorily created right to be free from discrimination in private employment, in addition to the remedial process provided by the statute. These cases represent an exception to the general policy against implying private damage remedies when rights are created by statute, Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104, 126-127 ; 252 NW2d 818 (1977), thus highlighting the special role of the judiciary in vindicating the civil rights of Michigan citizens.

By the adoption of the 1963 Constitution, the people of Michigan further strengthened Michigan’s policy of protecting its citizens from discrimination. The constitution provides:

*169 No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation. [Const 1963, art 1, § 2.]

The 1963 Constitution recognized the importance of access to the courts in the protection of civil rights. The constitutional provision creating the Michigan Civil Rights Commission, which is charged with the enforcement of art 1, § 2, provides: “Nothing in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state.” Const 1963, art 5, § 29 (emphasis added). While the Supreme Court has stated that the clear intent of this statement was to permit claimants to seek relief in the courts without first exhausting administrative remedies, Nummer v Dep’t of Treasury, 448 Mich 534, 550 ; 533 NW2d 250 (1995), I do not believe that the drafters of the constitution were solely concerned with the timing of civil rights suits. A fair inference from the various constitutional provisions is that the courts are considered especially competent to resolve civil rights claims and that “an aggrieved individual’s access to judicial remedies is inseparably interwoven with the substantive civil rights and was intended by the people of Michigan to be the lifeblood of keeping those substantive civil rights alive.” Heurtebise, supra at 435 .

In sum, Michigan long ago adopted a policy of ensuring its citizens access to the courts for the redress of unlawful discrimination. Indeed, as Justice Cavanagh stated, “the constitutionally guaranteed *170 direct access to a judicial forum is so interwoven with the enforcement of civil rights in Michigan that we cannot separate them without potentially harming substantive civil rights.” Id. at 438 . A contract that is contrary to public policy is illegal and void. Federoff v Ewing, 386 Mich 474, 481 ; 192 NW2d 242 (1971); Badon v General Motors Corp, 188 Mich App 430, 439 ; 470 NW2d 436 (1991). Accordingly, I would find that the parties’ arbitration agreement is void as it relates to plaintiff’s claims of race and handicap discrimination. 1

II. FEDERAL POLICY IS NOT UNIFORMLY IN FAVOR OF THE MANDATORY ARBITRATION OF CIVIL RIGHTS CLAIMS

The majority states that federal law strongly favors arbitration. However, while most federal courts have enforced mandatory arbitration agreements in statutory civil rights claims, this result is contrary to the intent of Congress. The legislative history of the 1991 Civil Rights Act, Pub L 102-166, 42 USC 1981 et seq., indicates that Congress wanted to ensure the right of workers to go to court and disapproved of the mandatory predispute arbitration of statutory civil rights claims. 2

*171 Although the 1991 Civil Rights Act contained a provision encouraging resolution of disputes through alternative dispute resolution mechanisms “[w]here appropriate and to the extent authorized by law,” 3 it is clear that Congress did not intend for arbitration of title vn claims to preclude judicial remedies. First, at the same time, Congress explicitly gave title vn plaintiffs the right to a jury trial. 4 As one court has observed: “It is . . . unlikely that the same Congress would in a single act create a new constitutionally-based right to a jury trial for Title vn plaintiffs, only to erode that right by endorsing mandatory predispute arbitration agreements.” 5

Moreover, there is direct evidence that Congress did not favor mandatory, predispute arbitration of civil rights claims. In addressing substitute language proposed by the Republican minority, the House Committee on Education and Labor stated that the majority version

includes a provision encouraging the use of alternative means of dispute resolution to supplement, rather than supplant, the rights and remedies provided by Title vn. The Republican substitute, however, encourages the use of such mechanisms “in place of judicial resolution.” Thus, under the latter proposal employers could refuse to hire workers unless they signed a binding statement waiving all rights to file Title vii complaints. Such a rule would fly in the face of Supreme Court decisions holding that workers have the right to go to court, rather than being forced into compulsory arbitration, to resolve important statutory and consti *172 tutional rights, including equal opportunity rights. American workers should not be forced to choose between their jobs and their civil rights. [HR Rep No. 40(1), 102d Cong, 1st Sess, p 104 (1991), reprinted in 1991 US Code Cong & Ad News 549 (emphasis added; citations omitted).]

Thus, Congress explicitly rejected a proposed amendment that would have permitted mandatory predispute arbitration agreements and instead chose only to encourage voluntary agreements. 6

*173 III. GILMER VINTERSTATE/JOHNSON LANE CORP

As the majority opinion notes, the United States Supreme Court’s position has relatively recently undergone a metamorphosis from a presumption against arbitration to one in favor of arbitration. The Court’s previous opinion of arbitration as a second-rate means of resolving disputes is exemplified in Alexander v Gardner-Denver Co, 415 US 36 ; 94 S Ct 1011 ; 39 L Ed 2d 147 (1974), and Wilko v Swan, 346 US 427 ; 74 S Ct 182 ; 98 L Ed 168 (1953). However, as one commentator has observed, “[s]ince 1985, [the Court] consistently has treated resistance to arbitration as a peculiarly unworthy species of bigotry.” 7 I do not deny that arbitration has its virtues as a dispute-resolution mechanism, particularly when both parties voluntarily agree to its use. Nevertheless, the Court’s change of heart regarding the issue was undoubtedly influenced more by the need to control crowded federal dockets than by concern for the rights of victims of unlawful discrimination. 8

The majority relies on Gilmer v Interstate/Johnson Lane Corp, 500 US 20 ; 111 S Ct 1647 ; 114 L Ed 2d 26 (1991). However, because the arbitration agreement in Gilmer was contained in the plaintiff’s registration *174 application with the New York Stock Exchange and was not part of any specific employment contract, the Court declined to consider the broader question whether arbitration agreements between employees and their employers are enforceable with respect to such claims. 9 Thus, the Court left open the question whether arbitration clauses in employment contracts, as opposed to arbitration clauses in the securities registration application, can be used to compel arbitration of employment discrimination claims. 10

In fact, in Gilmer the Supreme Court acknowledged that “all statutory claims may not be appropriate for arbitration.” Id. at 26 . The Court did not specify any statutory claims that are inappropriate for arbitration. However, it did state that arbitration agreements should not be enforced where Congress intended to preclude the waiver of a judicial forum for a particular claim. Evidence of this intention can be found in the text of the statute, its legislative history, or an “inherent conflict” between arbitration and the statute’s underlying purposes. See id.

IV. MANDATORY PREDISPUTE ARBITRATION AGREEMENTS ARE BAD POLICY

Arbitration is essentially a streamlined method of adjudication. Parties opt for arbitration in hopes of obtaining a faster and less costly resolution of their dispute. By choosing arbitration, it is expected that *175 the parties have considered their alternatives and decided that the benefits of arbitration outweigh the sacrifice of the protections available in the traditional legal system. However, where mandatory predispute arbitration agreements are required as a condition of employment, it is a fallacy that prospective workers make an informed, rational decision to enter into the agreements. Before a person has begun working for an employer, the possibility of suffering from unlawful discrimination in the course of employment seems extremely remote. Thus, before a dispute arises, the average employee cannot meaningfully evaluate exactly what is being waived and the practical effect of the waiver. 11

In addition, as the Equal Employment Opportunity Commission (eeoc) and others have argued, the use of mandatory arbitration in such circumstances may result in structural biases in favor of employers. For example, the employer is much more likely to be a “repeat player,” while the employee is a “one-shot player.” Thus, the employer will have the advantage of familiarity with the arbitration process. When a dispute arises, the employer will have information readily available about various arbitrators and their rulings in previous cases. 12 Furthermore, the arbitrator is likely to feel subtle pressure to find in favor of employers, who represent the source of future busi *176 ness. 13 Indeed, according to one report, seventy percent of the cases involving the mandatory arbitration of employee claims are decided in favor of the employer. 14

Moreover, arbitration is essentially a private process and therefore does not allow development of the law. The courts play an essential role in the enforcement of civil rights laws by establishing precedents that give guidance to other companies and employees and by allowing public scrutiny of corporate policies, thus giving companies a strong incentive to eliminate discriminatory practices. 15 However, as the EEOC has observed, “The courts cannot fulfill their enforcement role if individuals do not have access to the judicial forum.” 16

Finally, the vaunted advantages of arbitration are not guaranteed. Although “arbitration can often be superior, as an empirical matter it is not clear that binding arbitration is necessarily faster, cheaper, and otherwise better than litigation.” 17 Even where arbitration does result in increased speed and lower costs, the source of these benefits is often limits on discovery that may leave a plaintiff with a meritorious claim unable to prove it. 18

*177 Significantly, while the EEOC, 19 the Commission on the Future of Worker-Management Relations (the Dunlop Commission), 20 and the National Academy of Arbitrators (naa) 21 all support the use of voluntary, postdispute agreements to arbitrate, all three oppose the mandatory arbitration of disputes involving statutory rights as a condition of employment. The Dunlop Commission explained:

The public rights embodied in state and federal employment law — such as freedom from discrimination in the workplace and minimum wage and overtime standards — are an important part of the social and economic protections of the nation. Employees required to accept binding arbitration of such disputes would face what for many would be an inappropriate choice: give up your right to go to court, or give up your job. . . .

Binding arbitration agreements should not be enforceable as a condition of employment. 22

V. THE FEDERAL ARBITRATION ACT DOES NOT PREEMPT MICHIGAN LAW IN THIS CASE

The majority concludes that Michigan law permits the parties’ arbitration agreement and therefore does not address whether the Federal Arbitration Act (FAA), 9 USC 1 et seq., is implicated in this case. Because my analysis of Michigan law leads to a differ *178 ent conclusion, I now address whether, under the facts of this case, Michigan law is preempted by the faa. I conclude that it is not.

Section 2 of the FAA provides: “A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 USC 2. The Supreme Court has held that the faa was intended to apply in state as well as federal courts. 23 However, § 1 of the FAA limits its coverage to commercial arbitration agreements affecting interstate, foreign, or maritime commerce. 9 USC 1. Furthermore, the act provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other *179 class of workers engaged in foreign or interstate commerce.” Id.

An examination of the circumstances surrounding the passage of the faa 24 reveals that it resulted from the desire of the business community to overturn the common-law rule that denied enforcement of agreements to arbitrate. 25 The American Bar Association (ABA) drafted a proposed federal arbitration act, which was introduced in Congress in late 1922. The proposed act was intended to apply to consensual transactions between two merchants of roughly equal bargaining power. 26 However, the bill drew the attention of the president of the International Seamen’s Union, who opposed it on the basis that it would compel arbitration between seamen, as well as other transportation workers, and their employers. 27 In response, the chairman of the aba committee responsible for drafting the act testified before a Senate subcommittee that the bill was “not intended . . . [to] be an act referring to labor disputes, at all. It is purely an act to give the merchants the right or the privilege of sitting down and agreeing with each other as to what their damages are, if they want to do it. Now that is *180 all there is in this.” 28 Similarly, the chairman of the House Committee on the Judiciary stated:

This bill simply provides for one thing, and that is to give an opportunity to enforce an agreement in commercial contracts and admiralty contracts — an agreement to arbitrate, when voluntarily placed in the document by the parties to it .... It creates no new legislation; grants no new rights, except a remedy to enforce an agreement in commercial contracts and in admiralty contracts.” 29

Secretary of Commerce Herbert Hoover, an active supporter of the bill, wrote to the Senate subcommittee: “If objection appears to the inclusion of workers’ contracts in the law’s scheme, it might well be amended by stating ‘but nothing herein contained shall apply to contracts or employment of seamen, railroad employees, or any other class of workers engaged in interstate or foreign commerce.’ ” 30

Hoover’s proposed language was adopted, and the FAA became law on February 12, 1925. Decades later, courts were required to determine whether the exemption in § 1 excludes all contracts of employment, or only those employees who are engaged in transporting goods across state or international lines. The United States Supreme Court has yet to rule on this issue, 31 while the federal courts of appeal are *181 divided. The majority of circuits has adopted a narrow reading of the exclusion in § 1, finding that the exclusion applies only to workers actually engaged in interstate commerce. 32 A minority has held that the exception articulated in § 1 applies to all employment contracts. 33

However, the currently prevailing view that the exemption applies only to those employed in commerce is flawed because it ignores the historical setting in which the FAA was passed. The reach of the commerce power in 1925 was very limited; 34 in the *182 employment context, it applied mainly to transportation workers. 35 In 1925, there was no way for Congress to anticipate that in subsequent decades the Supreme Court would dramatically expand the scope of the commerce power. Thus, when Congress enacted the FAA, it could not have intended that the statute apply to a baker in a restaurant, as in the present case, because such an employee would not have been considered to be in interstate commerce. However, as the commerce power was expanded, the exemption has expanded along with it, despite the complete lack of evidence that Congress intended the act to apply to any employment contracts. 36 Thus, it is now the case that “[t]he heightened judicial emphasis on the policy of the Act ignores the policy of the exemption.” 37

In sum, because plaintiffs duties did not involve interstate or foreign commerce, and because the faa. was never intended to apply to employment contracts, I would find that the Michigan law is not preempted by federal law in this case.

Hood and McDonald, JJ., concurred.

Judge McDonald recognizes that he took a contrary position in this Court’s opinion in Heurtebise v Reliable Business Computers, Inc, 207 Mich App 308 ; 523 NW2d 904 (1994). However, Judge McDonald is now convinced that Michigan public policy prohibits mandatory predispute arbitration agreements in civil rights cases.

The majority notes that despite federal court decisions enforcing predispute arbitration agreements in federal civil rights cases, Congress has not amended the statute. However, this is undoubtedly more reflective of the fact that the Republicans attained a congressional majority in the 1994 elections than it is of the intent of the Congress that passed the 1991 Civil Rights Act.

This provision is codified as a historical and statutory note to 42 USC 1981.

See 42 USC 1981a(c)(1).

Rosenberg v Merrill Lynch, Pierce, Fenner & Smith, Inc, 995 F Supp 190, 205 (D Mass, 1998), affd 170 F3d 1 (CA 1, 1999).

Despite this legislative history, the majority of courts have not hesitated to enforce arbitration agreements in title vn claims. See, e.g., Sens v John Nuveen & Co, Inc, 146 F3d 175, 182-183 (CA 3, 1998); Paladino v Avnet Computer Technologies, Inc, 134 F3d 1054, 1062 (CA 11, 1998); Gibson v Neighborhood Health Clinics, Inc, 121 F3d 1126, 1130 (CA 7, 1997); Cole v Burns Int’l Security Services, 323 US App DC 133, 135-136; 105 F3d 1465 (1997); Rojas v TK Communications, Inc, 87 F3d 745, 747-748 (CA 5, 1996); Metz v Merrill Lynch, Pierce, Fenner & Smith, Inc, 39 F3d 1482, 1487 (CA 10, 1994); Willis v Dean Witter Reynolds, Inc, 948 F2d 305, 308 (CA 6, 1991); Alford v Dean Witter Reynolds, Inc, 939 F2d 229, 230 (CA 5, 1991). However, as one court observed:

The purpose of the Act was uniformly to expand employees’ rights and “to increase the possible remedies available to civil rights plaintiffs.” [Prudential Ins Co of America v] Lai [ 42 F3d 1299, 1304 (CA 9, 1994)] (emphasis added). It thus would be “at least a mild paradox,” Pryner[ v Tractor Supply Co, 109 F3d 354, 363 (CA 7, 1997)], to conclude that in the very Act of which the “primary purpose” was “to strengthen existing protections and remedies available [to employees under Title vn],” H.R. Rep. No. 40(II) at 1, Congress “encouraged” the use of a process whereby employers condition employment on their prospective employees’ surrendering their rights to a judicial forum for the resolution of all future claims of race or sex discrimination and force those employees to submit all such claims to compulsory arbitration. It seems far more plausible that Congress meant to encourage voluntary agreements to arbitrate — agreements such as those that employers and employees enter into after a dispute has arisen because both parties consider arbitration to be a more satisfactory or expeditious method of resolving the disagreement. [Duffield v Robertson Stephens & Co, 144 F3d 1182, 1192-1193 (CA 9, 1998).]

Haagen, New wineskins for new wine: The need to encourage fairness in mandatory arbitration, 40 Ariz L R 1039, 1043 (1998).

See Macneil, American Arbitration, p 172; see also Barrentine v Arkansas-Best Freight Systems, Inc, 450 US 728, 752 ; 101 S Ct 1437 ; 67 L Ed 2d 641 (1981) (Burger, C.J., dissenting) (stating that the Court’s restriction of arbitration “runs counter to every study and every exhortation of the Judiciary, the Executive, and the Congress urging the establishment of reasonable mechanisms to keep matters of this kind out of the courts”); Hanes Corp v Millard, 174 US App DC 253, 266; 531 F2d 585 (1976) (stating that a policy of liberally construing arbitration agreements serves to ease court congestion).

Gilmer, supra at 25, n 2 . The majority’s failure to reach the issue was criticized by Justice Stevens, who wrote: “The Court today . . . skirts the antecedent question whether the coverage of the [Federal Arbitration] Act even extends to arbitration clauses contained in employment contracts, regardless of the subject matter of the claim at issue.” Id. at 36 (Stevens, J., dissenting).

See id. at 25, n 2 .

Grodin, Arbitration of employment discrimination claims: Doctrine and policy in the wake of Gilmer, 14 Hofstra Lab L J 1, 29 (1996).

Eeoc Policy Statement on Mandatory Binding Arbitration of Discrimination Disputes as a Condition of Employment, Notice No 915.002 (July 10, 1997), § V, pp 12-13, see http://www.eeoc.gov/docs/mandarb.txt (hereafter eeoc Policy Statement); Cole, Incentives and arbitration: The case against enforcement of executory arbitration agreements between employers and employees, 64 UMKC L R 449, 474-479 (1996).

Eeoc Policy Statement, § V, p 13, n 15; Cole, supra at 478 .

Haagen, supra at 1053.

Eeoc Policy Statement, § IV, pp 6-8; Garrison, The employee’s perspective: Mandatory arbitration constitutes little more than a waiver of a worker’s rights, 52 Disp Resolution J 15, 18 (Fall 1997).

Eeoc Policy Statement, § IV, p 8.

Sternlight, Panacea or corporate tool?: Debunking the Supreme Court’s preference for binding arbitration, 74 Wash U L Q 637, 678 (1996).

Haagen, supra.

Eeoc Policy Statement, p 1.

Commission on the Future of Worker-Management Relations, Report and Recommendations, § 4, pp 32-33, see http://www.ilr. Comell.edu/library/e_archive/Dunlop/section4.html.

Statement and Guidelines of the National Academy of Arbitrators (adopted May 21, 1997), 103 Daily Lab Rep (BNA) E-1 (May 29, 1997), see http://www.naarb.org/guidelines.html.

Report of the Commission on the Future of Worker-Management Relations, pp 32-33.

See Southland Corp v Keating, 465 US 1 ; 104 S Ct 852 ; 79 L Ed 2d 1 (1984) (holding that the faa creates a substantive rule applicable in state and federal courts and forecloses state legislative attempts to undercut the enforceability of federal contracts to arbitrate by withdrawing from arbitration a claim included in the agreement to arbitrate); see also Perry v Thomas, 482 US 483 ; 107 S Ct 2520 ; 96 L Ed 2d 426 (1987) (holding that the faa preempts state legislation permitting a wage collection action to be maintained in court without regard to the existence of a private agreement to arbitrate).

Several members of the Supreme Court have pointed out that the Court has ignored congressional intent in interpreting § 2 of the faa. Justice O’Connor has stated: “[T]he Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.” Allied-Bruce Terminix Cos, Inc v Dobson, 513 US 265, 283 ; 115 S Ct 834 ; 130 L Ed 2d 753 (1995) (O’Connor, J., concurring). Justice Stevens has concluded that the “Court has effectively rewritten the statute to give it a preemptive scope that Congress certainly did not intend.” Perry, supra at 493 (Stevens, J., dissenting). Both Justice Thomas and Justice Scalia believe that the Court has ignored the language and intent underlying the faa. See Allied-Bruce Terminix Cos, supra at 285-289 (Thomas, J., dissenting).

For a comprehensive review of the circumstances surrounding the exemption’s submission and passage, see Finkin, “Workers’ contracts” under the United States Arbitration Act: An essay in historical clarification, 17 Berkeley J Emp & Lab L 282 (1996).

Stempel, Reconsidering the employment contract exclusion in section 1 of the Federal Arbitration Act: Correcting the judiciary’s failure of statutory vision, 1991 J Disp Resol 259, 294-295; Sternlight, supra at 647.

Finkin, supra at 296; Stempel, supra; Sternlight, supra.

Finkin, supra at 284.

Finkin, supra at 285, quoting Hearing on S. 4213 and S. 4214 Before the Subcomm of the Senate Comm on the Judiciary, 67th Cong, 4th Sess 9 (1923).

Cole, supra at 466 , quoting 65 Cong Rec 1931 (1924).

Finkin, supra, at 297, quoting Letter from Herbert Hoover, Secretary of the Department of Commerce, to Senator Thomas Sterling (Jan. 31, 1923).

In Gilmer, supra, the Court ruled that the exclusionary clause of § 1 did not apply because the arbitration clause at issue was contained in a contract with the securities exchange, rather than the plaintiffs employer. *181 The Court therefore decided to “leave for another day” the question whether § 1 excludes all contracts of employment from the coverage of the faa. Id. at 25, n 2.

See McWilliams v Logicon, Inc, 143 F3d 573, 576 (CA 10, 1998); Patterson v Tenet Healthcare, Inc, 113 F3d 832, 835-837 (CA 8, 1997); Asplundh Tree Expert Co v Bates, 71 F3d 592, 600-601 (CA 6, 1995); Miller Brewing Co v Brewery Workers Local Union No 9, AFL-CIO, 739 F2d 1159, 1162 (CA 7, 1984); Erving v Virginia Squires Basketball Club, 468 F2d 1064, 1069 (CA 2, 1972); Dickstein v duPont, 443 F2d 783, 785 (CA 1, 1971); Tenney Engineering, Inc v United Electrical, Radio & Machine Workers of America, Local 437, 207 F2d 450, 452-453 (CA 3, 1953).

We recognize that a panel of this Court recently adopted the majority view and held that “the exclusionary provision in 9 USC 1 is limited to employees directly engaged in the movement of goods in interstate commerce.” DeCaminada v Coopers & Lybrand, LLP, 232 Mich App 492, 499 ; 591 NW2d 364 (1998). However, for the reasons discussed in this opinion, we believe that this interpretation is erroneous.

See Craft v Campbell Soup Co, 161 F3d 1199, 1206 (CA 9, 1998); see also United Electrical, Radio & Machine Workers v Miller Metal Products, 215 F2d 221, 224 (CA 4, 1954) (questioning the narrow interpretation of § 1). Justice Stevens has opined that arbitration clauses contained in employment contracts are specifically exempt from the coverage of the faa. See Gilmer, supra at 39-40 (Stevens, J., dissenting). Despite its decision in Tenney, supra, the Court of Appeals for the Third Circuit appears to have recently suggested in dictum that ail employment contracts are exempted. See Pritzker v Merrill Lynch, Pierce, Fenner & Smith, Inc, 7 F3d 1110, 1120 (CA 3, 1993).

See generally United States v Lopez, 514 US 549, 584-600 ; 115 S Ct 1624 ; 131 L Ed 2d 626 (1995) (Thomas, J., concurring) (discussing the founding fathers’ understanding and early judicial interpretations of the Commerce Clause).

Finkin, supra at 298.

See id.

Id.