Utah Same-Sex Marriages and Private Employers

by Dorsey & Whitney LLP
Contact

Recent Federal Court decisions regarding Utah’s same-sex marriage laws have placed private employers in unchartered waters. Many private employers are now asking themselves: Am I required to extend benefits to same-sex couples married in Utah as I would to other couples legally married?

Background

On December 20, 2013, U.S. District Court Judge Robert J. Shelby enjoined Utah from enforcing state law that “prohibit[s] a person from marrying another person of the same sex.” Utah intends to appeal the decision. On January 6, 2014, the U.S. Supreme Court stayed Judge Shelby’s order pending a decision from the 10th Circuit Court of Appeals. See Herbert v. Kitchen, No. 13A687, 571 U.S. __, 2014 WL 30367 (Jan. 6, 2014). The Supreme Court’s stay is silent as to the validity of the estimated 1,300 same-sex marriages performed during the 17 days when Utah issued marriage licenses to same-sex couples.

Wednesday, Governor Herbert’s Office issued the following direction to state agencies:

With the district court injunction now stayed, the original laws governing marriage in Utah return to effect pending final resolution by the courts. It is important to understand that those laws include not only a prohibition of performing same-sex marriages but also recognizing same sex marriages. (emphasis in original)

While it is clear that state agencies will not recognize same-sex marriages performed in Utah, federal agencies are likely to take a different view.

Private Employer Obligations under Employee Benefit Plans

Since the Supreme Court’s decision in United States v. Windsor last June, the Internal Revenue Service and the Department of Labor have both provided guidance that employee benefit plans governed by federal law must recognize same-sex marriages. See Rev. Rul. 2013-17, 2013-38 I.R.B. 201, 203 (Sept. 16, 2013) (“[I]ndividuals of the same sex will be considered to be lawfully married under the Code as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex, even if they are domiciled in a state that does not recognize the validity of same-sex marriages.”); DOL Technical Release 2013-04 (Sept. 18, 2013) (stating that for purposes of ERISA, in general “the term ‘spouse’ will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages.”).

Nothing in the stay issued by the Supreme Court indicates the 1,300 marriages that occurred in Utah are invalid. Indeed, the message from Governor Hebert’s Office states that it is not commenting on the legal status of those who married and that it is an issue for the courts to decide. It is possible that these marriages will subsequently be found to be invalid and, if this occurs, they would not be protected under the IRS and DOL guidance. While the current status of the marriages under Utah law is disputed, these individuals do have a marriage certificate and employers that do not treat these individuals as married run certain risks under the federal laws governing benefit plans. In fact, earlier today, U.S. Attorney General Eric Holder said that the federal government will recognize the same-sex marriages performed in Utah despite the stay and despite Gov. Herbert’s announcement. Specifically, he said:

“In the meantime, I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.”

Marriage has a number of impacts on employee benefit plans, from allowing a spouse to enroll in a health plan to reimbursement of medical expenses. Based on the IRS and DOL guidance and the current state of the court decisions, if a private employer has an employee who was married to a same-sex partner in Utah before the stay, the employer should treat the employee as married. (The same is true for an employer who has an employee who has a valid same-sex marriage from another state who now resides in Utah.) If a private employer fails to do so, the employer runs a number of risks, including suit for failing to cover the same-sex spouse (and note that ERISA authorizes plaintiffs to recover attorney fees).

Private Employer Obligations under Employment Laws

Judge Shelby’s decision did not address employment discrimination against LBGT employees or the treatment of those who enter into same-sex marriages. While the Utah legislature declined earlier this year to enact the Employment and Housing Antidiscrimination Amendments (2013 S.B. 262) that would have amended Utah’s employment laws to extend protection based on both sexual orientation and gender identity, many municipalities in Utah have passed ordinances that prohibit employment discrimination on such grounds. Additionally, federal legislation (the Employment Non-Discrimination Act) is now being debated in Congress and it would extend similar protections to LGBT employees if enacted. For the foreseeable future, LBGT employment rights will be something that employers will need to closely monitor.

Conclusion

As to this developing and complex area of law, employers should contact legal counsel when faced with specific questions or unique factual situations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dorsey & Whitney LLP | Attorney Advertising

Written by:

Dorsey & Whitney LLP
Contact
more
less

Dorsey & Whitney LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.