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1.
FEATURE STORY:
SAME-SEX MARRIAGE DEBATE SPURS EMPLOYERS INTO ADOPTING DOMESTIC PARTNER
POLICIES
The issue
of whether or not to legally recognize gay marriages is far from being
settled. Cases all across the country are springing up every day. In California,
the Supreme Court agreed to review a gay rights case that raised questions
about businesses' ability to "discriminate" based on marital
status. A town judge in New York ruled that a state law banning same-sex
marriage was unconstitutional. And in Arizona, the Supreme Court let stand
an appeals court ruling that said that there was no fundamental constitutional
right to same-sex marriage.
While courts
of law, as well as politicians and religious leaders, debate the issue
of same-sex marriages, some companies and states aren't waiting for a
definitive answer on whether such marriages should be legalized before
taking actions that will affect the workplace. They are implementing policies
and laws that offer employment benefits to employees' same-sex partners.
For example,
beginning in 2005, California's Domestic Partner Rights and Responsibilities
Act will confer on registered domestic partners nearly all of the rights,
benefits, and obligations currently available only to spouses.
Offering
benefits to domestic partners isn't as simple as inserting the phrase
"and domestic partners" into existing policies. If you are investigating
providing employees' same-sex partners with spousal-like benefits, consider
these four factors.
1.
Define what you mean by domestic partnership. Some employers base their
definition on guidelines established by domestic partner registries. Also,
ask yourself: Will we offer benefits only to same-sex partners or to both
same- and opposite-sex domestic partners? According to the Society for
Human Resource Management in 2003, 23% of employers offered benefits to
same-sex partners and 31% offered benefits to opposite-sex partners.
2.
Determine what documentation will be required to prove domestic partnership
status. For example, you could require that an employee and his/her partner
submit an affidavit that states: they currently reside together, have
continuously resided together for one year, and are jointly responsible
for each other's common welfare and financial obligations.
3.
Carefully word plan documents. Decide how employees in domestic partnerships
will be referenced in plan documents. If an employee has provided satisfactory
documentation that he/she is a member of a domestic partnership, consider
referring to such employees as "partnered employees" to differentiate
them from "married employees" and "unmarried employees."
4.
Decide on what benefits to offer domestic partners. Some of the most common
benefits offered include family leave, bereavement leave, dental insurance,
pension benefits, and medical insurance. Note: The Internal Revenue
Code doesn't permit employees to pay for domestic partner medical coverage
with before-tax dollars.
Questions abound, though, about what an employer should do — regardless
of whether or not it has a domestic partnership policy — if an employee
in a same-sex relationship presents documentation of marriage and demands
the same benefits afforded to those in opposite-sex marriages. Experts
recommend that HR's safest bet is to tell the employee that you'll get
back to him/her, and then consult with corporate counsel.
Also, consider
asking yourself these basic questions.
- Are we
located in a jurisdiction (like Massachusetts) that has upheld gay marriages?
- Are we
located in a jurisdiction (like Vermont) that recognizes civil unions?
- What are
the local ordinances regarding gay marriages and sexual orientation?
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