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A recent decision from the U.S. Court of Appeals for the Fourth Circuit reminded this writer that you can still learn something new about the law every day ' even in an area where you are a supposed expert. This time, it was a decision regarding the so-called “manager rule,” a principle applied in some circuits in the context of retaliation claims under the Fair Labor Standards Act (FLSA). The rule had been extended to retaliation claims under Title VII. For managers, human resources professionals and the like, in order to engage in protected activity and garner protection from retaliation, the rule required the employee to “step outside his or her role of representing the company.”
The 'Manager Rule'
The “manager rule,” which I never even heard of in almost 20 years of practicing employment law, purports to address a concern that, if counseling and communicating complaints are part of a manager's regular duties, then “nearly every activity in the normal course of a manager's job would potentially be protected activity,” and “an otherwise typical at-will employment relationship could quickly degrade into a litigation minefield,” according to Hagan v. Echostar Satellite, 529 F.3d 617, 628 (5th Cir. 2008).
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