Twitter
Judge High School Football

Jugde_logo

My youngest son is playing freshman football for Judge Memorial High School.

CLICK HERE for game updates, scores and photos.

Archive
2016
2015
2014
2013
2012
SHRM Newsletter- Same Sex Marriage in Utah
Posted on Dec. 31, 2013

This is Utah SHRM Legal-mail no. 2013-24 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-  SAME SEX MARRIAGE IN UTAH

-  REMINDER- FMLA AFTER THE SAME SEX RULINGS

-  REMINDER- IRS ISSUES NEW GUIDANCE ON SAME SEX SPOUSE BENEFITS

-  STATES/EEOC SQUARE OFF ON CRIMINAL BACKGROUND CHECKS

-  UTAH DEBATE ON ANTIDISCRIMINATION LAW HEATS UP

UTAH SAME SEX MARRIAGE BAN STRUCK DOWN: As noted in a previous update, a Utah federal court has struck down Utah’s voter-approved ban on same sex marriages. The court ruled that a 2004 law passed by voters violates same sex couples' rights to due process and equal protection under the 14th Amendment of the United States Constitution. Both the federal district court and appeals court have refused to stay the decision while it is appealed. The State of Utah currently is seeking a stay from the United States Supreme Court.  All County Clerks in Utah now are issuing marriage licenses to same-sex couples and several hundred of these couples are now married. This means that Utah employers must treat same sex spouses the same as opposite sex spouses for purposes of employment and benefits. This is a fast-evolving area of the law so stay tuned for developments. You can read the recent Utah ruling here: http://www.scribd.com/doc/192787555/Utah-Same-Sex-Marriage-Ruling.

REMINDER- FMLA AFTER THE SAME SEX RULINGS: The court ruling recognizing same sex marriage will have a practical impact on employer implementation of laws like the Family and Medical Leave Act (FMLA). Among other things, FMLA allows an employee to take up to 12 weeks of leave to care for a spouse with a serious health condition. What does the same sex court ruling mean for this law? FMLA regulations define “spouse” 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.” (emphasis added). As one commentator notes, “in the case of same-sex marriages, the FMLA focuses not on whether the marriage is lawful in the state where the employer is located, where the employee works, or where the marriage occurred, but whether it is recognized in the state in which the employee resides.” Same-sex marriages are lawful in some 19 states now. The commentator also notes, with this chart, how the variations in state, employer location and employee residence affect the applicability of “spouse” under the FMLA (key: “SSM” refers to the states in which same-sex couples are permitted to marry or recognize same-sex marriage; “Non-SSM” refers to the other states):

Employer’s State

State of Employee’s Residence

Is Same-sex Spouse a “Spouse” for FMLA Purposes?

SSM

SSM

Yes

SSM

Non-SSM

No

Non-SSM

SSM

Yes

Non-SSM

Non-SSM

No

 

Thus, a Utah-based employer would have to recognize, for FMLA purposes, the same sex spouse of an employee who resides in Utah or any other state that recognizes same sex marriage, but not for an employee who resides in a state (e.g. Idaho) that does not currently recognize same sex marriage. Confusing? You bet. Expect that the Obama Administration Department of Labor will plan to issue new FMLA regulations trying to clarify these issues and likely simply saying that spouse includes any same sex spouse from a valid marriage, regardless of where it occurred or where the employee currently resides.

REMINDER- IRS ISSUES NEW GUIDANCE ON SAME SEX SPOUSE BENEFITS: The Internal Revenue Service recently issued some new guidance on providing benefits for same sex couples. The new guidance can be found here: http://www.irs.gov/pub/irs-drop/n-14-01.pdf . National SHRM members can read about the new guidance here: http://www.shrm.org/hrdisciplines/benefits/Articles/Pages/Guidance-Same-Sex-Spouse-Benefits.aspx.

STATES/EEOC SQUARE OFF ON CRIMINAL BACKGROUND CHECKS: The Equal Employment Opportunity Commission (EEOC) and almost a dozen state Attorneys General (AGs) are taking opposite sides on whether employer criminal background checks are a valid employment tool. The EEOC has issued guidance suggesting employers must show individualized assessments and a legitimate business reason for decisions based on such background checks, which the EEOC says can be a ruse for race bias. The AGs wrote to the EEOC protesting the conclusion. The AGs note many reasons employers will not want to hire convicts, including employee and customer safety, a desire to minimize the risk of liability and because  a conviction may indicate lack of dependability or trustworthiness. The AGs also are concerned over the costs associated with forcing employers to perform individualized assessments. In response, the EEOC has stated that it isn’t illegal for employers to use the results of criminal background checks but it may result in employment discrimination so its legality will depend on if an employer can demonstrate that its decision is job-related and consistent with business necessity. An excellent (and more detailed) description of this debate can be found here: http://www.hrhero.com/hl/articles/2013/12/18/states-challenge-eeoc-guidance-on-criminal-background-checks/.

UTAH DEBATE ON ANTIDISCRIMINATION LAW HEATS UP: Turn on your TV these days and you are bound to see a raging debate about whether or not Utah should pass a state-wide ban on discrimination based on sexual orientation and/or gender identity. No such state or federal law exists, although the United States Senate recently passed such an antidiscrimination bill and about a dozen local governments in Utah prohibit such bias. With the Utah Legislature expected to consider such a bill (SB 262, found here:  http://le.utah.gov/~2013/bills/sbillint/SB0262.pdf) when it convenes on January 27, 2014, opponents are already airing TV ads against the bill. For more information on the pro and con arguments about the proposed antidiscrimination bill, go here (for the pros): http://www.equalityutah.org/news-and-events/blog/its-a-bill and here (for the cons): http://sutherlandinstitute.org/news/2013/12/04/sounds-reasonable-but-isnt/.

HAPPY NEW YEAR!

Post Comment:

Name:

Email:

-->
Author

mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition

OBrienAV

OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien
 

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012