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Posts Tagged ‘same-sex marriage’

General Motors To Offer Benefits To All Its Married Workers

Saturday, November 9th, 2013

Laura ClawsonGeneral Motors is basically following the Obama administration’s lead and extending marriage benefits to all of its workers in legal same-sex marriages, even those who live in states without marriage equality:

“This decision is in line with GM’s efforts to find, keep and grow the world’s best talent and to offer our employees policies and benefits that are competitive with many of the largest and best-managed industrial companies in the U.S.,” said GM’s Chief Diversity Officer Ken Barrett in a statement sent to The Huffington Post.The changes will include pension plans, savings plans and health care plans for legally married same-sex couples.

To qualify, couples do have to have been married in one of the 14 and soon to be 15 states that have instituted marriage equality, meaning some couples will have to travel significant distances to get married. On the other hand, the cost of the trip will be offset by the benefits GM is now offering. The move is especially significant given that GM’s plants are overwhelmingly located in states like Ohio, Michigan, and Indiana that have explicitly banned same-sex marriage.

This article was originally printed on Daily Kos Labor on November 6, 2013.  Reprinted with permission.

About the Author: Laura Clawson is the labor editor at Daily Kos.

Same-sex spouse gets ERISA death benefit

Thursday, August 15th, 2013

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Sarah Farley had worked at a law firm where she participated in the firm’s Profit Sharing Plan – a plan qualified under the Employee Retirement Income Security Act (ERISA). The Plan provides that death benefits be paid to the participant’s “surviving Spouse.”

Sarah then married Jean Tobits in Canada. When Sarah died, both Jean and Sarah’s parents claimed the death benefits.

The dispute went to federal district court in Pennsylvania (Cozen O’Connor PC v. Tobits) where the judge had no trouble deciding that Jean was Sarah’s surviving spouse.

In United States v. Windsor (US Supreme Court 06/26/2013) the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) – defining “spouse” as a person of the opposite sex – is unconstitutional. Therefore, since Sarah and Jean were lawfully married, and that marriage is recognized by the laws of Illinois, ERISA has to be interpreted as meaning Jean was Sarah’s spouse. And thus the law firm’s ERISA plan has to be interpreted as meaning Jean was Sarah’s spouse.

This leaves me with one huge question: Will you get the same result in every state? That seems doubtful to me. The opinion in Windsor (a 5-4 decision) relied heavily on the fact that Windsor’s same-sex marriage was recognized by the State of New York (and the Tobits marriage was recognized by the State of Illinois). As Justice Kennedy put it, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” So, if you’re in a state where same-sex marriages are not recognized, it may be difficult to apply the logic of the Windsor case.

Hat Tip to Mike Reilly at Lane Powell, who writes Boom: The ERISA Law Blog.

This article originally appeared on Ross Runkel Report on August 13, 2013.  Reprinted with permission

About the Author: Ross Runkel Ross Runkel is a full-time labor-management arbitrator, professor of law emeritus, and former editor of Employment Law Memo.

How Does the Fall of DOMA Impact the FMLA and Other Employee Benefits?

Friday, June 28th, 2013

Jeff NowakUnless you’ve been securely wedged under a rock over the past 24 hours, you know that the U.S. Supreme Court has declared unconstitutional the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal union only between one man and one woman.

Yesterday, as Justice Anthony Kennedy read the opinion of the Court in U.S. v. Windsor, I can only imagine that his thoughts were consumed completely by the manner in which the extinction of DOMA would impact the future of the Family and Medical Leave Act. Right?

But let’s not leave this to chance.  In the unlikely event that Justice Kennedy (and the rest of the Court’s majority) didn’t fully appreciate how the FMLA might be impacted, we’ve got the Court’s back, as we discuss the issue more fully below:

How FMLA is Impacted after the Fall of DOMA

As we know, the FMLA allows otherwise eligible employees to take leave to care for a family member with a serious health condition.  “Family member” includes the employee’s spouse which, under the FMLA regulations, is defined as:

a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.  29 C.F.R. 825.102

Initially, this seems to suggest that the DOL would look to state law to define “spouse.”  Not so fast. According to a 1998 Department of Labor opinion letter, the DOL acknowledged that the FMLA was bound by DOMA’s definition that “spouse” could only be a person of the opposite sex who is a husband or wife.  Thus, the DOL has taken the position that only DOMA’s definitions could be recognized for FMLA leave purposes.  As result, FMLA leave has not been made available to same-sex spouses.

That changed yesterday, at least in part.

What’s Clear about FMLA After the Court’s Ruling

In striking down a significant part of DOMA, the Supreme Court cleared the way for each state to decide its own definition of “spouse.”  Thus, if an employee is married to a same-sex partner and also lives in a state that recognizes same-sex marriage, the employee will be entitled to take FMLA leave to care for his/her spouse who is suffering from a serious health condition, for military caregiver leave, or to take leave for a qualifying exigency when a same-sex spouse called to active duty in a foreign country in the military.

What’s Unclear about FMLA After the Court’s Ruling

But what about employees who live in a state that does not recognize same-sex marriage?  Are they entitled to FMLA leave to care for their spouse?

As an initial matter, the regulations look to the employee’s “place of domicile” (state of primary residence) to determine whether a person is a spouse for purposes of FMLA.  Therefore, even if the employee formerly lived or was married in a state that recognized the same-sex marriage, he/she is unlikely to be considered a spouse in the “new” state for purposes of FMLA if the state does not recognize the marriage.  This is no small issue, since 30+ states currently do not recognize same-sex marriage and some don’t go all the way (e.g., Illinois, which recognizes same-sex unions, not marriages).

Surely, some might argue that the United States Constitution requires other states to recognize the marriage; however, this issue is far from settled.  My friend and Indiana University Maurer School of Law professor Steve Sanders writes a compelling article for SCOTUSblog contending that an individual married in one state maintains a “significant liberty interest” under the 14th Amendment’s Due Process Clause as to the ongoing existence of the marriage.

Here, employers clearly need some help from the DOL.  Might the DOL draft regulations on how employers administer the FMLA in situations where the employee’s spouse is not recognized under state law?  If so, we could see the DOL give life to concepts such as a “State of Celebration” rule, in which a spousal status is determined based on the law of the State where the employee got married.

Without more guidance, it still is too early to tell where this question is heading.  Nevertheless, the employer community looks forward to helping shape these rules.

Other Key Benefits Affected by the DOMA Decision

FMLA is not the only federal law impacted by the fall of DOMA.  If federal regulations follow through, some of the notable federal laws and benefits impacted may include:

  • Taxes: Same-sex spouses likely will share many federal benefits and be able to manage tax liability in a way that opposite sex spouses typically do.  For instance, an inheritance, which was taxed under DOMA, will no longer be taxed for a same sex spouse (this was the factual scenario at issue in the decision). Income taxes, payroll taxes, health insurance benefits, and tax reporting may also be impacted.
  • Affordable Care Act and COBRANPR reports that the Court’s decision will impact how the Affordable Care Act (affectionately referred to as Obamacare) is carried out, though many details remain unclear. Moreover, same-sex spouses may be eligible for continuation of health insurance benefits (COBRA) even though the spouse may lose his/her job.
  • Employee benefits: Same-sex spouses likely will be treated equally when it comes to employee benefits, including a 401(k) plan.
  • Social security benefits: The Court’s decision also paves the way for social security survivor benefits to continue onto a legally married same-sex partner.
  • Citizenship:  According to NBC News, some 28,000 same-sex spouses who are American citizens will now be able to sponsor their non-citizen spouses for U.S. visas and can qualify for immigration measures toward citizenship.

For future updates on the impact of DOMA on FMLA and employee benefits generally, feel free to follow me on Twitter or Linkedin.  I’ll be posting more there.  You also can subscribe to this FMLA Insights blog on the right hand side of this page.  Just enter your address and I’ll email you my updates directly.

This article was originally printed on FMLA Insights on June 27, 2013.  Reprinted with permission.

About the Author:  Jeff Nowak is a management side attorney at Franczek Radelet P.C. and author of the FMLA Insights blog.

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