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By JARED SHELLY, staff writer at Human Resource Executive®

When gay marriage officially became legal in the state of New York last month, hundreds of same-sex couples rushed to be among the first to take their wedding vows under the new law.

"The trend is likely to be that; in those jurisdictions where marriage is possible, it will be a requirement to get benefits, just as it is for heterosexual couples," says Helen Darling, president and CEO of the National Business Group on Health in Washington.

Currently, the same-sex domestic partners of 33 percent of government workers and 29 percent of private-industry workers have access to healthcare benefits, according to the Bureau of Labor Statistics. Survivor benefits are offered to 7 percent of private-industry workers and half of government workers.

Given the new law, companies in New York are beginning a transition period where their gay employees will have roughly six months to a year to get married before the company pulls back its domestic-partner benefits, says Darling.

But she doesn't think a nationwide pullback of domestic-partner benefits is in the works because just seven states currently allow gay marriage.

"It won't happen anytime soon because we're not going to have [gay] marriage laws in every state for a long time," she says. "In some states, gay marriage won't ever be passed."

And a complicating factor is that many workforces include people living in different states -- with different rules -- so dropping domestic-partner benefits would hurt out-of-state employees or force them to travel to other states to marry.

However, Roberta Chevlowe, a labor and employment lawyer with Proskauer in New York, says companies won't be in any rush to drop domestic-partner benefits -- even if they're New York employers with a strictly New York-based workforce.

"Why should [an employer] force same-sex couples to get married in New York in order to get certain benefits from the company?" she asks, noting that the federal government does not recognize same-sex marriage. That means gays will be taxed on the benefits they receive from an employer as if they are income, says Chevlowe.

They also continue to lose out on plenty of other benefits, such as Social Security survivor benefits.

"On a federal level as it stands today, same-sex couples are not equal to opposite-sex couples," says Chevlowe.

Even if the federal government were to repeal the Defense of Marriage Act, it still wouldn't mean the end of domestic-partner benefits, says Chevlowe.

"I do still think domestic partnership benefits will be around because ... the states are the ones who define marriage," she says. "Even if DOMA was repealed tomorrow, there will be many states where [gays] can't get married."

But for gay New Yorkers receiving equal benefits, things just got much easier -- and less personal.

Before the law passed, many gay employees requesting domestic-partner benefits had to prove to their employer that they were in a longstanding, committed relationship -- providing evidence that they owned property together, held joint bank accounts or named each other as beneficiaries.

Now, says Darling, they don't need to disclose all that personal information. They can simply show a marriage certificate.

"It's a lot simpler," she says.

August 23, 2011

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