In a pair of published opinions, raising novel employment issues in this Circuit, the Third Circuit Court of Appeals addressed the test for determining whether a “temporary” worker is an “employee” eligible to assert Title VII claims against the company which contracts their services, and the test for determining whether time spent on meal breaks is compensable under the FLSA. In each case, the Third Circuit adopted fact-sensitive and multi-factor inquiries, rather than articulating bright line tests.

In Faush v. Tuesday Morning, Inc., the Court considered whether plaintiff, a temporary worker who claimed to have experienced racially-motivated “harassment,” was an “employee” who could 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.

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