No. 22-1101

SARA FRAGA, individually and on behalf of all persons similarly situated,

Plaintiff, Appellee,

v.

PREMIUM RETAIL SERVICES, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Kayatta, Circuit Judges.

Jonathan A. Keselenko, with whom James S. Fullmer and Foley Hoag LLP were on brief, for appellant. Joshua P. Davis, with whom Shanon J. Carson, Phyllis Maza Parker, Camille F. Rodriguez, Alexandra K. Piazza, Berger Montague PC, Jason M. Leviton, and Block & Leviton LLP were on brief, for appellee.

March 3, 2023 KAYATTA, Circuit Judge. Plaintiff Sara Fraga brought this putative class action alleging that her former employer, Premium Retail Services, Inc., failed to pay her and other employees for time spent working off-site. Premium, in turn, sought to compel arbitration pursuant to an arbitration agreement that Fraga signed as a condition of her employment. The district court denied Premium's request for arbitration on the basis that Fraga plausibly alleged facts that placed her within the Federal Arbitration Act's section 1 exemption for workers engaged in interstate commerce. Premium then filed this interlocutory appeal. Because the district court has yet to make the findings of fact upon which the question of arbitrability likely turns, we must remand for further factfinding with the benefit of the guidance provided in this opinion.

I.

We begin with a summary of the record as it now stands. Incorporated and headquartered in Missouri, Premium provides retail merchandising support to brands at their stores across North America. Its services include assisting retail stores with stocking inventory, creating merchandise displays, and keeping pricing and signage up to date. Premium employs "merchandisers" in all fifty states to perform these functions.

- 2 - Fraga worked as a merchandiser for Premium in Massachusetts from December 2020 to early 2021.1 Her zone of store locations encompassed stores in Massachusetts, Connecticut, New Jersey, and New York. As a merchandiser, Fraga's duties included traveling to her assigned stores, auditing and stocking product, building product displays, and updating product pricing and signage. Most relevant to this appeal, Premium's job listings for merchandisers stated that merchandisers were also expected to "[r]eceive marketing and promotional materials at your home and bring them to the store." These materials -- which the parties call "point-of-purchase (POP) materials" -- included items like coupons and signage advertising retail products.

Consistent with its job listings, Premium would, at times, ship POP materials intended for specific stores to the homes of its merchandisers, who would then drive the materials to the stores for display. The parties dispute how frequently this occurred. Fraga submitted a declaration stating that "Premium sent these POP materials directly to my home several times per week" and that "[o]n a typical day, I would receive anywhere from a large envelope to more than a dozen boxes of POP materials." She also submitted similar declarations from four other Premium

1 Fraga's complaint alleges that she worked for Premium until January 2021, but declarations she submitted to th