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SHRM Newsletter: A Focus On Employers and Same Sex Marriage
Posted on Oct. 17, 2014

This is Utah SHRM Legal-mail no. 2014-19 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- A FOCUS ON EMPLOYERS AND SAME SEX MARRIAGE:

  • SUPREME COURT DECLINES TO HEAR SAME SEX MARRIAGE CASES
  • COULD THE SUPREME COURT LATER BAN SAME SEX MARRIAGE?
  • WHAT DOES THE COURT RULING MEAN FOR EMPLOYERS?
  • WHAT DOES THE COURT RULING MEAN FOR LAWS LIKE FMLA?
  • A TIME FOR EMPLOYERS TO ADAPT TO CHANGE

SUPREME COURT DECLINES TO HEAR SAME SEX MARRIAGE CASES: In early October of 2014, the United States Supreme Court recently declined to hear appeals from decisions striking down state same sex marriage bans in Utah, Oklahoma, Wisconsin, Indiana and Virginia. The ruling has the effect of legalizing same sex marriage in those states and in the states also governed/bound by the same federal courts of appeals. As a result, now counting these states and those states that have legalized same sex marriage in other ways, some 60% of the United States population lives in the 30 states (and DC) where same sex marriage is now legal. Here is a link to a good summary of the state-by-state status of same sex marriage recognition: http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/marriage-equality_10-2014.pdf. As a result of the Supreme Court’s action, Utah county clerks have once again begun issuing  marriage licenses to same sex couples and the State’s Governor and Attorney General sent letters to all Utah state officials instructing them to recognize same sex marriages and bestow the same legal rights and benefits on such couples as are accorded opposite sex marriages.

COULD THE SUPREME COURT LATER BAN SAME SEX MARRIAGE? In a word, yes, but such a ruling would pose huge practical problems coming in a world where same sex marriage is now legal in 30 states. There are other pending federal court appeals challenging other state bans on same sex marriage. If one of those federal appeals courts upholds such a ban, there will be a conflict between the federal appeals courts. Traditionally, the Supreme Court will step in and resolve such conflicts. If the court did so, and ruled that states can legally ban same sex marriage, it is likely that many states (like Utah) will renew their bans too. While such an outcome is possible, some doubt it would occur because by that time, there would be thousands and thousands of same sex couples who have lawfully married each other. In other words, some commentators think that same sex marriage will be so common that as a practical matter, the Supreme Court could not stop it. Although the Supreme Court’s refusal to hear appeals does bring some greater clarity to the same sex marriage picture, the issue is not completely in focus yet. The best thing for an employer to do is get the best possible legal counsel and comply with the laws that apply to you and your employees.

WHAT DOES THE COURT RULING MEAN FOR EMPLOYERS? The legalization of same sex marriage will have a practical impact on employers. Employers must now treat same sex spouses the same way they treat opposite sex partners in terms of legal rights and access to benefits. It would be wise to immediately contact your benefits broker or provider (e.g. for health care benefits) and ask how and when you can do so. Some providers are allowing immediate access to plans for same sex spouses as new dependents if done within a reasonable time following the Supreme Court ruling. Others might allow employees to add same sex spouses during open enrollment periods. And by the way, this ruling creates a new wrinkle for your open enrollment periods, right? Make sure you work carefully with benefits providers to properly consider the new development.

WHAT DOES THE COURT RULING MEAN FOR LAWS LIKE FMLA? The Supreme Court’s action also impacts 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? Current 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 has noted, “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.” The commentator also notes 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. Alabama) that does not currently recognize same sex marriage. The Obama Administration Department of Labor has announced plans to issue new FMLA regulations clarifying these issues and simply saying that spouse includes any same sex spouse from a valid marriage, regardless of where it occurred or where the employee currently resides.

A TIME FOR EMPLOYERS TO ADAPT TO CHANGE: Whatever happens to other same sex marriage bans in other states during other court appeals, the bottom line on the recent Supreme Court ruling appears to be that employers now must adapt/evolve their thinking. The word spouse has a new and evolving meaning. This change has clear implications for not just benefits and legal compliance, but for issues of workforce diversity, culture and tolerance. One clear truth emerges from both Eastern and Western cultures about times of change such as this one. Charles Darwin, someone who knew something about change and evolution, once said, “It is not the strongest or the most intelligent who will survive but those who can best manage change.” An ancient Chinese proverb said the same thing, but did so just a bit more colorfully: “A wise man adapts himself to circumstances, as water shapes itself to the vessel that contains it.”

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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.

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Chambers 2011 Attorney

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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