Obtaining early favorable dispositions, whether dismissal on the pleadings or summary judgment, should be an overriding goal for most employers facing litigation. So-called “bright line” tests can be useful in achieving that goal. But in two recent published opinions raising novel employment issues in this circuit, the U.S. Court of Appeals for the Third Circuit adopted fact-sensitive, multi-factor inquiries rather than articulating more useful bright line tests.

In Faush v. Tuesday Morning, the court considered whether a temporary worker claiming to have experienced racially-motivated “harassment” was an “employee” entitled to bring suit under Title VII against the company that contracted with his “technical” employer to provide temporary workers. Considering how common the use of “temporary” workers is in today’s economy, and coming on the heels of the NLRB’s landmark Browning-Ferris decision, Faush is an important decision for employers. In Babcock v. Butler County, the court adopted the “predominant benefit test” in concluding that corrections officers failed to state a claim under the FLSA for unpaid portions of their meal breaks. That may not be the final word, however, as plaintiffs in Babcock recently petitioned the Third Circuit for rehearing en banc.

Third Circuit Expands Joint Employer Liability: Faush

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