Same-sex Marriage Ruling Impact on Employers

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The effects of the United States Supreme Court ruling legalizing same-sex marriage will impact employers. Brent Kleinman, a local attorney, will talk what employers need to know when updating their employee handbooks, offering benefits and more in light of the ruling.

STEVE GOLDSTEIN: It's been more than a week since the U.S. Supreme Court ruled same-sex couples have the right to marry. That decision will have wide-ranging impacts, including new requirements for employers. Here to talk about that is local attorney Brent Kleinman of Kleinman Law. Brent,welcome. Thanks for being here.

BRENT KLEINMAN: Thank you very much.

STEVE GOLDSTEIN: Let's talk, first of all, about domestic partner benefits that were put in by employers because same-sex couples were not able to get married, they wanted to provide them the same opportunities and benefits. How will that affect domestic partner benefits going forward?

BRENT KLEINMAN: Each company will have to make a decision on their own. Do they want to continue that or do they want to say you need to get married now that you're legally able to nationwide?

STEVE GOLDSTEIN: But is this a problem where you look at it and now we have same-sex couples who don't want to get married, heterosexual couples who don't want to get married, could that put employers in a tough position if they decide to force them to go one way or the other?

BRENT KLEINMAN: It's going to be an interesting decision that the companies have to make because if a same-sex couple chooses they don't want to get married but want to continue their benefits, then you may have a couple, a male or female who decide to sue the company because they don't believe in the covenant of marriage but they want their significant other to have the benefits, as well. So it's going to be an interesting thing that happens and will be played out in court most likely.

STEVE GOLDSTEIN: The effort to bring same-sex marriage about or make it legal has been a long-term effort but there have been little jumps along the way. Arizona seems to have been in the last year or so having to get prepared for this ruling. Have you seen some progress from employers to get ready so it's not coming on them willy-nilly?

BRENT KLEINMAN: Arizona when same-sex marriages became legal over a year ago, they had to deal, all the businesses had to deal with this at that point and going forward from there, anything in Arizona, they had to provide couples of same-sex marriages all those benefits. Now, it's a nationwide thing and you start talking about federal benefits, Social Security, Aris benefits, FMLA benefits and all the healthcare issues.

STEVE GOLDSTEIN: How long of a process could this be, especially in a state like Arizona where many of the state's leaders are not necessarily inclined towards this ruling?

BRENT KLEINMAN: Federally, the assumption is going to be all benefits transfer to all married couples. Arizona statutes that say husband and wife get certain benefit, that's going to go through the courts because Mark Brnovich, the attorney general, has already come out and said if it says husband and wife, that's what the people of Arizona wanted.

STEVE GOLDSTEIN: Are there employers who are philosophically opposed to same-sex marriage who will in some ways still be able to keep a policy in place that may not be in favor of same-sex marriage or because of the Supreme Court ruling, there is simply no wiggle room here?

BRENT KLEINMAN: Arizona is still a state in which there is no antidiscrimination policy. So that is not a protected group. So private companies can still discriminate against same-sex couples. The city of Phoenix has passed an antidiscrimination, the city of Tempe has as well and some other cities in the state have, but the state itself, it's still not a protected class.

STEVE GOLDSTEIN: The discrimination thing is very interesting. This idea that okay, you can get married but let's say people didn't know that you were in a same-sex situation, a same-sex relationship, but now, you've decided to get married. In some way, twisted way, could that work against people who are excited to get married but then the employer might say I didn't know you were homosexual, I don't like that, you're fired?

BRENT KLEINMAN: In Arizona being a right to work state, that's definitely a possibility. It's going to be an issue. I have a feeling that will again be litigated at some point because that's not a proper reason to fire somebody but it's happened before and I'm sure it will continue to happen in the state until the right case gets far enough long.

STEVE GOLDSTEIN: You briefly mentioned the Family Medical Leave Act. Going forward, how could this ruling affect that and what do people have to do?

BRENT KLEINMAN: This affects it where the spouse who is having the child, if it's two women that are married and one of them is having the child, she gets the time off but her spouse as well gets the time, a husband would get off, which I believe is a few weeks, after the birth of the child and this also works with adoption and serious family issues, illnesses. So if your spouse in a same-sex couple is seriously ill, you're allowed to take time off. And that's protected.

STEVE GOLDSTEIN: Let me come back to domestic partner benefits. In a situation like that if, in fact, a company decides to say well you're not married so we're going to remove some of these benefits, is the Affordable Care Act being in place, will that actually offer more options for people if, in fact, they're no longer on their domestic partner's plan? Are there other options available that there weren't before?

BRENT KLEINMAN: That's really going to be on a case-by-case basis because certain companies have incredible plans for people. And if they were given that through the domestic partnership relationship but they're choosing not to get married, they may not get that same benefit, whereas there are people who have fairly horrible plans and they can do better independently of each other.

STEVE GOLDSTEIN: Based on the fact that the Supreme Court came out with this ruling and the fact there are still not antidiscrimination laws in effect in Arizona, could we see the same sort of legal battles come with that? Are you hearing from people that they were excited about this one legal aspect, and now they need to take a breather or they realize that maybe there's momentum, we need to push for this now as well?

BRENT KLEINMAN: Arizona, you've got both sides of this looking that this is just the race has just started. If you compare this like to Daytona 500, this is lap one. There is a lot to go. And both sides really want to get their parts back in place. And I believe for same-sex marriages, in an Arizona culture that's not going to accept that, they have a lot to fight for still, but I believe with the national swing of things, it's going to go in their favor.

STEVE GOLDSTEIN: What about the impact of Phoenix passing the antidiscrimination law? Could that influence the state in any way?

BRENT KLEINMAN: I wish it could. I don't think so. I think the state is a very different political dynamic than the city of Phoenix or city of Tempe for that matter.

STEVE GOLDSTEIN: What else are you watching really closely out of this ruling that hasn't been talked about as much but in the legal community it is?

BRENT KLEINMAN: I think the great thing out of this is the rights the spouses will get automatically when it comes to the state planning issues, medical issues and being identified as a family unit to all different types of agencies. And that's important because that you have child with your same-sex couple, and there's a medical emergency, typically only one parent is authorized to do that. This changes that. And this gives that second parent the ability to answer for their child.

STEVE GOLDSTEIN: Ultimately, as it benefits people in their homes and emotionally, will it make the law more complicated or will it in essence simplify the law because more people will have this commonality?

BRENT KLEINMAN: I think a few years down the road it's going to simplify it. But I think there's going to be a lot of bumps to get to that smooth sailing. So I'm looking forward to when it's all clear and ready to go but right now, it's going to be very bumpy and depending on companies that you have that are much against this and unfortunately in Arizona we have a few of those but once they can't past these initial fights of it and realize that the state and most of the population is for these equal rights, it's going to be good.

STEVE GOLDSTEIN: Are you keeping a closer eye on small businesses or larger corporations?

BRENT KLEINMAN: It's really the small to medium sized businesses that you have to look at because they don't have the infrastructure inside to automatically know what needs to be changed. They have to go out, find an H.R. person, find a lawyer to review all the documents and make sure everything says spouse versus husband and wife. And a lot of people had designations of "other" before for their same-sex couples and that's got to change to "spouse."

STEVE GOLDSTEIN: Brent Kleinman, thank you very much for coming in.

BRENT KLEINMAN: My pleasure, thank you.

Brent Kleinman: Local Attorney

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