How “Facts On The Ground” Can Determine Employer Liability

Two recent decisions in the Third Circuit Court of Appeals adopted “fact-sensitive and multi-factor inquiries, rather than articulating bright line tests,” says a client alert from Greenberg Traurig. The upshot for employers is that they need to make sure the facts and “factors” in their own workplace aren’t of a sort that will engender liability. In one case, Faush v. Tuesday Morning, Inc., a worker who came through a temp agency filed a Title VII discrimination claim and the appeals court backed her up, citing a ““non-exhaustive list of relevant factors” to conclude she was an employee for purposes of the claim. This decision, according to the writers, provides a guide if not a roadmap for structuring contracts and workplace procedures so that a worker in a temp arrangement will not be so classified. At issue in the second case, Babcock v. Butler County, was a defined 15-minute period of an hour-long lunch break for corrections officers. Per a collective bargaining agreement, it was deemed non-compensable, but plaintiffs in a putative class action maintained they were essentially tied down during that break – in uniform, on call for emergencies, unable to run personal errands, etc. The appeals court ruled against them on the grounds that they, not the employer, received “the predominant benefit of the time in question” and therefore they were not entitled to compensation under the Fair Labor Standards Act. The writers conclude that in both these decisions the takeaway for employers is that writing proper contracts and carefully managing the “facts on the ground” are key to obtaining a litigation-resistant workplace.