How will the Supreme Court of California ruling that same-sex couples may not be treated as "second-class citizens," affect employers with employees working in that state? Since January 1, 2005, California has extended to same-sex registered partners all "rights, protections, and benefits" granted to husbands and wives. Therefore, there may be minimal impact in California workplace practices. However, because of the tremendous amount of attention that the California court case has received, we anticipate that employees in such committed relationships will expect that their employers adopt workplace practices and policies to ensure that they treat employees in same-sex marriages equally. We recommend that clients with California employees understand the workplace issues.
In this new decision, the Supreme Court of California rejected the proposition that marriage is defined only as between a man and a woman. The Court held that this perpetuates the belief "that gay individuals and same-sex couples are in some respects 'second-class citizens' who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples."
Proof of Domestic Partnership vs. Proof of Marriage
Same-sex partners are eligible to register a domestic partnership with the Secretary of State by completing a Declaration of Domestic Partnership. Requirements for registration include: having a common residence, being over 18 years old, and not being married or in a domestic partnership with someone else. Typically, employers require employees to submit a Certificate of Registration to obtain benefits for a same-sex domestic partner.
Turning to same-sex marriage, employers may wish to evaluate their practices as to proof of marriage. Employers should consider whether to require all employees seeking spousal benefits to submit a marriage certificate.
Health Insurance
California law already requires that employers provide health insurance to registered domestic partners to the same extent as provided to husbands and wives. Similarly, employers will most certainly have to provide health insurance to same-sex spouses to the same extent as provided to husbands and wives.
Leave
The California Family Rights Act allows eligible employees to take 12 weeks, per calendar year, of paid or unpaid job-protected leave. During the leave, the employee's health, dental, and vision benefits are maintained. One of the purposes of the leave is to allow an employee to care for a spouse with a serious health condition. Since California law already confers "rights, protections, and benefits" to same-sex registered partners, employers will most certainly have to allow an eligible employee leave to care for a same-sex spouse.
Other Benefits
If employers offer other benefits or perks to husbands and wives that are not required by federal or state law, these benefits should apply equally to same-sex married couples. For example, if an employer provides bereavement leave in the case of death of an immediate family member, employers should extend this benefit to include the death of same-sex spouses. Similarly, employers may need to evaluate policies relating to such topics as adoption, pre-natal appointments, and employee discount programs.
Federal Law Unchanged
There is a federal law, known as the "1996 Defense of Marriage Act," that prohibits a same-sex spouse from qualifying as a spouse under any federal law. To the extent there are federal laws that afford certain employee benefits to husbands and wives, nothing prevents California employers from extending these benefits to same-sex married couples.
Other Issues to Consider
- How will employers handle same-sex married employees who resist transfers to states that do not recognize same-sex marriage?
- Can companies refuse to provide domestic partner benefits since same-sex couples can now marry and avail themselves of the legal protection of such union?
- Remember also that California's anti-discrimination law already prohibits discrimination against job applicants and employees based on sexual orientation. We foresee that some gay and lesbian employees who have until now kept their sexual orientation a private matter will make their affectional preference known to employers so that they can obtain workplace benefits. Therefore, we encourage employers to update their non-discrimination and non-retaliation policy statements to be certain that they include protection of employees and applicants based on sexual orientation, and that employers and their supervisors commit to these individuals the same legally required practice of "zero tolerance" for race, sex, age, and other forms of discrimination.
- Should an employer with employees in California voluntarily adopt the same practices and benefits for its gay employees working in other states?
Please contact the Maslon Labor & Employment attorneys for counsel on how this new law may affect California workplace practices and policies.
|
