May 2013

By: James B. Sherman, Esq.

On May 14, 2013, Minnesota became the 12 ^th state in the country to recognize same-sex marriage. The law, signed by Governor Dayton, officially goes into effect on August 1, 2013 and will give the same legal status to marriages between individuals of the same sex that has been recognized for persons of the opposite sex. The full impact of legal recognition of same-sex marriages as it pertains to the workplace, has yet to be determined. Yet there are a number of fairly obvious ramifications in store for Minnesota employers, unfortunately, with little time to get ready. With hundreds of same-sex couples already lining up to “tie the knot” as quickly as possible after the new law goes into effect, employers have just months to prepare.

The new same-sex marriage law calls for a comprehensive review of employment policies and procedures that may no longer apply, or may no longer be legal. The following examples anticipate issues from the same sex marriage law on everything from fringe benefits, to leaves of absence, and are just some of the workplace issues that arise when same-sex marriages become legal in August 2013.

Insurance Benefits – Many private employers are unsure of whether to provide insurance benefits to the same-sex partners of their employees. Presently, federal law neither requires nor prohibits private employers from providing such benefits. Minnesota’s same-sex marriage law may affect a same-sex spouse’s eligibility for individual retirement accounts, private pensions and health-care benefits. While a number of employers already voluntarily provide these benefits to same-sex or other non-legally recognized partners, once same-sex marriages carry the same legal status as opposite-sex couples have long enjoyed, such spouses will likely be covered automatically under the language of most fringe benefit plans. In other cases plan language and terminology created under Minnesota’s old law, may not apply or may create confusion or inconsistencies with the new law. As a result, employers of individuals in Minnesota should consult with their plan providers and knowledgeable legal counsel to adapt quickly, in advance of August 1, 2013.

Family and Medical Leave Act Leave – Will same-sex spouses be eligible for FMLA leave to care for one another for purposes of the FMLA? Under the FMLA a spouse is defined as a husband or wife recognized by state law, including common law marriages. On the surface it would seem natural that once Minnesota’s same-sex marriage law goes into effect, FMLA leave will be available for Minnesota employees that wish to care for a same sex-spouse with a serious health condition. Currently, this is not the case because this FMLA provision is limited by the federal Defense of Marriage Act’s (DOMA) definition of “spouse” which includes only opposite-sex spouses. Because DOMA does not recognize same-sex marriages, federal FMLA leave is not currently available for same-sex spouses in Minnesota. We say not “currently” because arguments on DOMA and how it affects federal benefits for same-sex spouses were made to the United States Supreme Court earlier this year. Adding to this uncertainty, the Department of Justice announced that it will no longer defend the exclusion of same-sex couples from the definition of “marriage” for purposes of federal programs and tax treatment, which would include the FMLA. This serves as a reminder that this issue will need to be monitored for the proper administration of an employee’s FMLA request to care for a same-sex spouse.

Sexual Orientation/Marital Status Discrimination – The Minnesota Human Rights Act (MHRA) prohibits, among other things, sexual orientation discrimination. The MHRA also prohibits marital status discrimination. Consequently, same-sex marriage in Minnesota means that these two protected classes are now linked in such a way that an increase in the number of charges filed against employers alleging MHRA violations for both is more likely.

Under the Minnesota Supreme Court’s decision in Taylor v. LSI,
marital status discrimination goes beyond basing employment decisions on whether or not someone is or is not married; it was held to also include employment discrimination based on the identity of one’s spouse. Because a spouse need not be an employee, with Minnesota’s lawful recognition of same-sex marriages, an employer’s decision not to hire, or to fire or take some other adverse employment action because someone has a same-sex spouse, will give rise to a marital status discrimination claim in addition to one for sexual orientation discrimination. Consequently, while Minnesota employers have been prohibited for some time by law from basing employment decisions on an employee or applicant’s sexual preference, where a spouse or ex-spouse happens to be of the same sex the new law adds another legal basis for further liability.

These issues serve to highlight just some of the foreseeable implications of Minnesota’s same-sex marriage law as it pertains to employers. A recent news report speculated that Minnesota could see thousands of newly married same-sex couples within just months of the August 1, 2013 effective date of this new law. Therefore, it is advisable to get ahead of these issues before the law goes into effect by consulting with experienced legal counsel who are well versed in employment law and the issues surrounding same-sex marriage.

For help with reviewing existing policies and benefit terms for compliance with the new law, contact attorneys James Sherman at (952) 746-1700, or email jukruse@wesselssherman.com.