On benefits, gay couples already covered

Times Staff Writers

The California Supreme Court decision legalizing same-sex marriage raises workplace issues that companies need to consider, even though last week's ruling will have little direct effect on employee benefits, legal experts say.

California's domestic partnership law, as well as statutory bans on discrimination based on marital status and sexual orientation, already requires businesses to provide virtually the same state-regulated benefits to gay couples on their payrolls as they do to employees who are in opposite-sex unions.

Even if it doesn't affect how benefits are doled out, however, introducing a new definition of marriage is something employers must take into account, said William C. Thomas III, a Los Angeles attorney with the firm of Seyfarth Shaw.

"Employers will need to be mindful of how this shift in California law, as it pertains to gay marriage, might impact policies and procedures that are already in place," Thomas said.

For example, businesses that have traditionally allowed just-married employees to take time off for their honeymoon would have to extend that benefit to same-sex couples, Thomas said.

"In many cases, it may not involve a policy change" by the company, he said. "It may just be a matter of how individuals are treated under existing policy."

The ruling could also raise interstate employment issues. For example, what if a company in a state that bans gay marriage has employees in California?

"If an out-of-state company has a benefit plan and it defines the people getting it as 'employee and spouse,' then a person in a marriage by a same-sex couple in California would get the benefit," said Jon Davidson, legal director of Lambda Legal, a nonprofit advocacy organization on gay civil rights issues. "That person is legally the spouse here, so it would apply."

Davidson said such cases came up in Massachusetts after that state legalized gay marriage in 2004. As far as he knows, no company has refused to pay the benefit.

Crucially, the California ruling applies only to benefits covered by state law, such as family leave provisions, Medi-Cal coverage and workers' compensation insurance.

Federally regulated benefits, including Social Security, payments to survivors of military veterans and tax advantages, are not affected. The federal Defense of Marriage Act, which restricts wedlock to opposite sex-couples, trumps California law in this regard.

Even such workplace staples as 401(k) retirement savings plans, which involve deferment of federal income taxes, aren't covered by the court's decision.

In their ruling, the justices outlined nine differences between domestic partners and married couples under current state law. For employers, the main difference is that the definition of a married person -- and therefore one who is eligible for spousal benefits -- is a bit broader.

"For example, to be in a domestic partnership, you have to live together," Davidson said. "But to be married, you don't have to have a common residence.

"If you are a prisoner, you can be married, but you can't be a domestic partner."

It appears that many companies that offer marriage-related incentives to customers, such as rental car companies that allow spouses to drive at no extra charge, already extend those benefits to domestic partners.

One group it might affect are state government employees with long-term insurance under the California Public Employees' Retirement System. Currently, domestic partners are not covered by that insurance, but spouses are. In fact, the difference in who is covered under the state system was one of the factors cited by the court in its decision.

California's first statewide domestic partnership law, passed in 1999, took a step toward granting same-sex partners many of the same rights, protections and benefits as married couples. The law was greatly expanded in 2003.

As of April, 48,517 couples were registered as domestic partners in California, according to the secretary of state's office. (The state allows heterosexual couples to register if one partner is at least 62 years old, but it's estimated that 90% of the partnerships involve same-sex couples.)

The number of same-sex unions in California may go up in the wake of the Supreme Court ruling, said Lee Badgett, director of research at UCLA's Williams Institute, "but even if it does, once you spread that out over the hundreds of thousands of businesses in California, it's not going to make much of a dent."

Rob Hennig, a Century City attorney specializing in employment law, echoed that point.

"This is a very big deal in terms of society and how we perceive gay people," he said. "But in the broad scheme of things, this is not a huge deal in regard to employee benefits."




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