Money Talks | November 2015

By Melissa Myers and Michael J. Tucker, November 2015 Issue.

Melissa Myers: Marriage equality is getting more and more real all the time.

Michael J. Tucker: How do you mean?

Myers:Well, now advisers are fielding inquiries from clients who are wondering if they are required to tell their employers that they got married.

Tucker: Understandably, that question is coming up pretty regularly nowadays.

Myers: We’re suggesting to some clients that they may have an obligation to notify the employer of their updated marital status, or it may be a good idea even if it isn’t required.

Tucker: For our Echo readers, we asked Nonnie Shivers, an employment lawyer par excellence in Phoenix, to give us her two cents on this important question.

Myers:What did Shivers say about employees who are enrolled in employer-provided domestic partner benefits who then get married?

Tucker: If an employee is receiving domestic partner benefits that he or she cannot receive by the terms of the employer’s benefit plan if the employee is married, Shivers said the employee would have an affirmative obligation to notify the employer of the marriage.

Myers:Most benefit plans require employees and their domestic partners to swear to certain facts in an affidavit when signing up for domestic partner benefits.

Tucker: Notably, it’s typical that the employee and the domestic partner both signed a document promising not to get married.

Myers:Remember that most of those affidavits were signed in a legal environment where same-sex marriage wasn’t legally possible, and so the sense of this type of affidavit was that employers did not want to continue paying for an employee’s domestic partner benefits if either the employee or the covered domestic partner later ran off and got married to an opposite-sex spouse.

Tucker: Right. And so, it would be typical that if an employee’s unmarried domestic partner is receiving health insurance benefits based on domestic partner status, and then the employee and the domestic partner marry each other, then the employer’s benefit plan would define them as no longer eligible for domestic partner benefits.

Myers:Shivers probably said that defrauding your employer is unwise.

Tucker: Yes, she did. And, even though an employee might regard this type of fact scenario as a technicality, failure to inform the employer could lead to serious consequences.

Myers:Were there any other reasons why an employee who enters into a marriage would be obligated to notify the employer?

Tucker: That was the only situation we could conjure up in which the employee MUST inform the employer.

Myers:However, it could be advantageous for the employee to notify the employer. Married employees often qualify for employer-provided fringe benefits, not only including health insurance, but also beneficiary identification, family medical leave and so forth.

Tucker: Marriage licenses are easily discovered in online searches, of course, so employees really don’t have an expectation of privacy in terms of any sort of confidential nature of their marital status. It’s not technically confidential.

Myers:What can our readers expect going forward?

Tucker: Shivers reported that some advocacy groups have been using the potential concerns about employers discriminating against employees in the workplace based on their actual or perceived sexual orientation as a basis for lobbying for changes in the law, such as the Equality Act, ENDA, and local/state protective measures.

Myers:Surveys show that most Americans believe that firing someone because they are LGBT is already against the law. In general, it isn’t.

Tucker: Some federal contractor employers and certain other major employers impacted by federal employment laws are thinking of tracking LGBT status among their employees (as opposed to marriage).

Myers:So, it sounds like it’s foreseeable that some employers may be asking employees to self-identify voluntarily as to LGBT status.

Tucker: Certainly some of our clients and other LGBT people in the workplace may become concerned that they are putting themselves at risk to the extent that their sexual orientation is a matter of record for their employer.

Myers:Folks who are concerned about these issues can follow the ongoing efforts to make employment nondiscrimination laws more solid in Arizona, and federally.

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