What recent changes have happened with same-sex marriage laws, and how do these affect employers and their obligations to employees under employment laws like FMLA/CFRA?
There have actually been some landmark cases heard by the Supreme Court in recent months, and they will have an impact on employers in California and nationally. One of these decisions was in relation to California's Proposition 8. Prop 8 stated that a marriage in California was defined as being between one man and one woman, effectively banning same-sex marriages in the state. However, it has been declared as unconstitutional by both a federal judge and the U.S. Court of Appeals for the Ninth Circuit. Those decisions were appealed to the Supreme Court in the case of Hollingsworth vs. Perry.
Hollingsworth vs. Perry: The Basics
The plaintiffs in Hollingsworth vs. Perry set out to challenge the ruling that Prop 8 was unconstitutional. They sought to reinstate the ban on same-sex marriage. (Marriages in California had been suspended while the ruling was pending).
However, no one would defend the constitutionality at the Supreme Court level. The people who would be required to enforce it – the California state officials responsible for performing marriages – did not step forward to defend the law. Instead, a California Senator stepped forward to defend it.
The Supreme Court's narrow procedural ruling found that the backers of Prop 8 did not have the legal "standing" to challenge those lower court decisions. Since the Senator did not have a stake in the matter and the state officials refused to defend the constitutionality of the ballot initiative, the case was not actually decided by the Supreme Court. They gave no opinion on whether Prop 8 was unconstitutional.
However, the net result was that the Court effectively permitted same-sex marriage in California because they said that no one with proper standing has legally challenged the lower court rulings (the ones that declared Proposition 8 unconstitutional). Thus, the prior rulings are in effect – Prop 8 banning same-sex marriage is still deemed unconstitutional by the lower courts – and marriages between same sex couples have resumed.
"A lot of people misconstrue this particular decision and view it as a victory and that the California constitution does not include a ban preventing same-sex marriages. And that is true, but it's only true because the defender of the law lost on 'standing.' [The Court took] no opinion on whether Prop 8 itself is unconstitutional." Callan Carter explained in a recent CER webinar. It could still be challenged again by someone who has the legal standing to do so, and the lower court rulings could be reversed.
Same-sex marriage and CFRA: New employer obligations
There are many questions about how these decisions may affect employers, specifically concerning FMLA/CFRA leave eligibility and administration.
The short answer is that some things will change and others will not. For example, registered domestic partners in California are already treated as the equivalent to a spouse, so this ruling does not change anything for them in terms of their ability to take leave. An employee whose domestic partner has a serious health condition may use up to 12 weeks of leave under the California Family Rights Act (CFRA) to care for his or her partner (or the partner's child).
However, ordinarily when an employee takes leave to care for a seriously ill spouse, the 12 weeks under FMLA and CFRA run concurrently. Under Section 3 of the Defense of Marriage Act (DOMA), the term "spouse" as used in the FMLA previously meant only "a person of the opposite sex." Thus, an employee who had legally married his or her same-sex partner in a state that permits the marriage was not entitled to FMLA leave to care for that partner because the partner was not a "spouse" under federal law.
Now that Section 3 of DOMA has been overturned, and in conjunction with the resumption of same sex marriage in California, employees with a same-sex spouse will also be covered by the FMLA to care for their sick, same-sex spouses. The impact here is that FMLA and CFRA will now run concurrently for these individuals instead of only running CFRA previously.
There is also a caveat: the FMLA may not consider a domestic partner to be a spouse under federal law, so employees who choose to remain partners without marriage will continue to use only CFRA in this situation.
The above information is excerpted from the webinar "Supreme Court Roundup for California Employers: The Latest Labor and Employment Law Rulings Explained." To register for a future webinar, visit CER webinars.
Attorney Callan Carter is a partner in the San Francisco office of Fisher & Phillips LLP and a member of the firm's Employee Benefits Practice Group.
Didn’t the state supreme court already reject another attempt to challenge the Prop. 8 ruling?
Worth noting re the DOL’s FMLA post-DOMA guidance: the DOL guidance indicates that for the purposes of the FMLA, an individual will only qualify as a same-sex spouse of an employee if the employee resides in a state that recognizes his or her marriage. This is consistent with the definition of spouse provided by the DOL’s preexisting FMLA regulations, which look to the employee’s state of residence to determine who qualifies as a spouse. The new guidance clarifies that in the wake of Windsor, employers must now provide FMLA leave for their employees to care for a same-sex spouse if the employee resides in a state where his or her same-sex marriage is recognized—even if the employer is located in a state that does not recognize the marriage. (http://www.jdsupra.com/legalnews/irs-dol-and-ebsa-issue-post-doma-guidan-93803/)