FOR AMERICAN WORKERS, MARRIAGE RIGHTS AND DOMESTIC PARTNER BENEFITS ARE STRANGE BEDFELLOWS

Employers are struggling to map out what is best for employees and their bottom line.  Is this the beginning of the end for domestic-partner benefits?

photo:  Ove Overmyer

Rochester, N.Y.--  Misinformation and confusion is commonplace now that the Marriage Equality Act in New York has become the law of the land.  The Empire State joins six other states or municipalities in which same-sex couples can get married in the United States.

What does this mean for all workers?  What does this mean for the future of domestic-partner benefits and those who are stuck in civil unions?  Will unmarried straight couples be denied worker benefits if they choose not to marry?

When gay marriage officially became legal in the state of New York in July, thousands of same-sex couples rushed to be among the first to take their wedding vows under the new law. Before the law passed, many gay employees requesting domestic-partner benefits had to prove to their employer that they were in a longstanding, committed relationship -- providing evidence that they owned property together, held joint bank accounts or named each other as beneficiaries.

Meanwhile, employers in the state are now mulling over this question: Should they stop offering domestic-partner benefits in light of the Marriage Equality Act?  As a result of these new found laws and policies, employers should be mindful of their existing plan documents and the way in which they define terms such as spouse and domestic partner.

Now in New York state, same-sex spouses will receive the same rights and responsibilities provided to different-sex spouses under New York law. According to ESPA and the NYCBA, there are over 1,300 such rights and responsibilities, including, health care decision-making for an incapacitated spouse, property rights, and inheritance rights.

This law will not affect domestic partnership registries.  It will continue to be available unless the municipality or employer chooses to terminate the registry or the labor unions that represent those workers fail to negotiate for these benefits in their collective bargaining agreements.

All couples who have registered or will register as domestic partners in Albany, Ithaca, New York City, Rochester, Southampton, Suffolk County, or Westchester County, but are not legally married, will continue to have access to the limited rights and responsibilities available through the registries. Workers need to know that domestic partnerships and civil unions will not automatically convert to marriages.

Employers are asking workers to make the first move

The Human Rights Campaign says that corporations want to
 retain the best and brightest.  One way to do that is offer
equal benefits to all employees. photo:  Ove Overmyer

However, the expected trend is likely to be just that; in those jurisdictions where marriage is possible, it will be a requirement to get benefits, just as it is for heterosexual couples, says most private sector human resource specialists, including Helen Darling, president and CEO of the National Business Group on Health in Washington. 

Currently, the same-sex domestic partners of 33 percent of government workers and 29 percent of private-industry workers have access to health care benefits, according to the Bureau of Labor Statistics. Survivor benefits are offered to 7 percent of private-industry workers and half of government workers.

"Given the new law, companies in New York are beginning a transition period where their gay and lesbian employees will have roughly six months to a year to get married before the company pulls back its domestic-partner benefits," says Darling.

But she doesn't think a nationwide pullback of domestic-partner benefits is in the works--  primarily because there are just seven jurisdictions that currently allow same-sex marriage.  And, she believes it won't happen anytime soon because there are many states that are still struggling with the issues of equality and civil rights. 

Additionally, many human resource specialists agree that we now have an intricate web of pending legislation in our state legislatures and courts attempting to grapple with the definition of families and legally recognizing personal relationships-- all of which complicates perceiving the status of our American working families.

And, another complicating factor is that many workforces include people living in different states -- with different rules -- so dropping domestic-partner benefits would hurt out-of-state employees or force them to travel to other states to marry.

Roberta Chevlowe, a labor and employment lawyer with Proskauer in New York, think companies won't be in any rush to drop domestic-partner benefits -- even if they're New York employers with a strictly New York-based workforce.  The Human Rights Campaign says corporate employers want to retain the best and brightest, and one way to do that is to provide benefit packages that are equal across the board.

Chevlowe asks, "Why should [an employer] force same-sex couples to get married in New York in order to get certain benefits from the company?"  She added, noting that the federal government does not recognize same-sex marriage, "that means a worker in a same-sex relationship will be taxed on the benefits they receive from an employer as if they are income." 

LGBT workers are still being treated far from equal; Labor advocates say DOMA is unconstitutional

Workers in same-sex relationships also continue to lose out on plenty of other benefits, such as Social Security survivor benefits.  On a federal level as it stands today, same-sex couples are far from equal to opposite-sex couples-- mostly when it comes to reporting taxes on earned income.  When same-sex couples can not file jointly, they lose out on many tax benefits afforded different-sex married spouses.

Even if the federal government were to repeal the Defense of Marriage Act (DOMA), most labor advocates agree that it should not mean the end of domestic-partner benefits or perpetuating the ill treatment of employees with different identities.

"I still think domestic partnership benefits should remain as is--  right now the states are the ones who define marriage and relationships," says Bess Watts, president of CSEA Monroe County Local 828 and a national board member of Pride At Work, AFL-CIO.  She told the Voice Reporter, "DOMA is unjust and unconstitutional-- it needs to be repealed."

Watts stresses that union workers should continue to negotiate domestic partner benefits language into their collective bargaining agreements even though state laws on relationship matters are evolving at a rapid pace. 

Tom Privitere, WNY Director of Field Services for the Public Employees Federation, who was the chief negotiator in the first effort to adopt domestic partnership language in New York State collective bargaining agreements back in 1995, wants public employees to know that domestic-partner benefits and civil unions are not the same as marriage.  "Back then, getting second-class status was not the goal and this was not just about LGBT workers.  Statistics show that the percentage of families who enjoy domestic-partner benefits are unmarried heterosexual couples.  This was an effort that benefited all our state workers who were job-titled under our collective bargaining agreement."

"You do not have to get married in New York or otherwise register your marriage in New York if you are legally married elsewhere, " added Watts.  In February 2008, an intermediate appellate court ruled that same-sex couples who marry outside New York are entitled to full recognition of their marriages in New York. 

In May 2008, the Court of Appeals, New York’s high court, unanimously ruled not to review the decision in Martinez v. County of Monroe, letting the appellate court’s ruling stand. Pat Martinez is a employee of Monroe Community College and a member in good standing with CSEA Monroe County Local 828.  She successfully sued her employer to have her relationship legally recognized, and therefore, was eventually offered the same benefits as the married heterosexual colleagues that worked right beside her.

On May 14, 2008, Governor Paterson’s legal counsel directed all state agencies to revise rules and regulations in order to provide equal rights, benefits, and responsibilities to same-sex couples who marry in other jurisdictions, pursuant to the court’s decision in Martinez.

Watts and Privitere both say if you want to receive spousal or family benefits at work, it will be up to you to inform your employer that you have a domestic partner or that you are now married.  They also both suggest you proactively contact any entity who is required to recognize your marriage or a possible name change, whether it be your bank, lawyer or the department of motor vehicles.

In some cases, however, if your employer does not require opposite-sex couples to provide a marriage certificate in order to prove the existence of their marriage, then you should not be required to do so either.

Although workplace inequtities have received more attention of late, Privitere cautions that until the federal government, including perhaps the Supreme Court, finally and fully recognize the legitimacy of married same-sex couples, the slippery slope experienced by LGBT couples in California is still possible elsewhere-- including here in New York State.

-written by Ove Overmyer