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Moving Backwards: Trans Military Service

Co-Written by Outten & Golden LLP Paralegal Toby Rae Irving

In the six months since his inauguration, President Trump and his cabinet have been pushing forward to fulfill his myriad of campaign promises, with mixed success. Two days ago it became evident, however, that his continuity from the campaign ends with his supposed support of the LGBTQ community.  Members of the trans community face challenges and lack of legal protection around the primary concerns of most Americans: employment, housing, and healthcare. Instead of addressing these issues central to daily life, President Trump has, once again, rolled the clocks backward on rights for trans people by banning transgender people from serving in the military. The President cited concerns around medical costs and "disruption."

Trump Tweets to Ban Transgender Service Members from Serving "In Any Capacity in the U.S. Military"

Co-Written by Outten & Golden LLP Law Clerk Ryan Elias

On July 26th, President Trump issued a policy shift via Twitter laying out a ban on transgender individuals from serving "in any capacity in the U.S. Military."  His reasoning: transgender service members detract from the military's focus on "decisive and overwhelming victory" and "burden" the military with "tremendous medical costs and disruption."

This policy shift runs contrary to evolving case law and is based on unfounded factual allegations that ignore the fact that transgender people serve in the military at nearly twice the rate of the general population.

T-Mobile USA, Incorporated v. NLRB, No. 16-60284 (5th Cir. July 25, 2017)

The Fifth Circuit enforces a National Labor Relations Board ("NLRB") order striking down an employer's policy that banned the use of "cameras, camera phones/devices, or recording devices (audio or video) in the workplace."

Alamo v. Bliss, No. 15-2849 (7th Cir. July 20, 2017)

The Seventh Circuit decides a couple of useful things in this Title VII and § 1983 national-origin discrimination, harassment, and retaliation case, set in a City of Chicago firehouse. First, it holds that even petty activity such as lunch-stealing may constitute part of a hostile work environment when the entire pattern of conduct is considered together. Second, even such tedious activities as constantly shifting an employee from site to site, and intensively challenging fitness for duty after medical leave, may constitute materially adverse employment actions.

New ERISA Fiduciary Rule Takes Effect

On June 9, the long-awaited revised "fiduciary rule" from the U.S. Department of Labor ("DOL") went into partial effect and will be in full force as of January 1, 2018. After nearly a decade, and much political wrangling, the updated rule ushers in sweeping changes regarding the duties and responsibilities financial advisors and others owe their clients.

The fiduciary rule is actually part of the Employee Retirement Income Security Act ("ERISA"), which governs employer-sponsored retirement and health care plans and protects the money employees contribute to those plans. While it may seem that this is just something those working in the financial services industry must know about, anyone who contributes to a company-sponsored pension or 401(k) plan or who maintains their own IRA should understand the new protections that the updated rule provides.

Do Retirees Have Rights Under ERISA When Companies Cut Benefits?

It's no secret that one of the ways companies try to cut costs is through layoffs. Another method, which can be just as disruptive to employees, is by reducing pensions and other benefits earned while working for the employer. From well-known companies to state governments, retirement benefits seem to be a favorite target, and provisions in President Trump's proposed budget are also raising fears that retired federal employees would see their benefits shrink drastically over time.

Castleberry v. STI Group, No. 16-3131 (3d Cir. July 14, 2017)

The Third Circuit holds that a manager's single use of a racial slur, combined with a threat to fire a Black employee, may be enough all by itself to constitute a hostile work environment under Section 1981.

Donathan v. Oakley Grain, Inc., No. 15-3508 (8th Cir. June 28, 2017)

The Eighth Circuit holds that a granary employee who complained about sex discrimination in her paycheck - only to have her manager initiate her layoff literally minutes later - was entitled to have a jury decide whether she suffered retaliation under the Equal Pay Act, Title VII and the Arkansas Civil Rights Act.

Bayer v. Neiman Marcus Group, Inc., No. 15-15287 (9th Cir. June 26, 2017)

Here's a timely reminder to include a prayer for nominal damages in Title VII and ADA complaints. At least in some circuits, including the Ninth, such relief is deemed equitable and thus may protect a claim from being mooted by intervening changed circumstances. That little toehold for $1.00 in damages may be the difference between outright dismissal and prevailing-party status.

Will Trump's Immigration Crackdown Lead to Wage Abuse?

Have you ever interacted with a cashier, gardener, nail salon employee, call center worker, home health aide, parking attendant, or restaurant server? If so, chances are the person who provided you that service was an undocumented worker.

One of Donald Trump's most popular promises during his presidential campaign was that he would immediately crack down on illegal immigration. He made good on that pledge, signing several executive orders shortly after taking office that set in motion the hiring of new U.S. Immigration and Customs Enforcement (ICE) agents and expanded their powers to deport undocumented individuals.

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