Jul 1, 201212:00 AMForward HR
with Diane Hamilton and Nilesh Patel
Doing business with the city of Madison now means providing equal benefits for domestic partners
Attorney Nilesh Patel is a member of Wisconsin SHRM, which is dedicated to being the state leader in HR management and premier source for HR expertise and resources. More information can be found at: http://www.wishrm.org. Nilesh is the principal attorney of the Mahadev Law Group, LLC, which focuses on human resources and employment law issues for organizations. He can be reached at firstname.lastname@example.org.
This article reviews the law’s major provisions, such as: 1) Which benefits must be offered on an equal basis? 2) Who is a covered employer? 3) What must employees prove to establish a domestic partnership? 4) What are the notice and record-keeping obligations?
Benefits available for domestic partnerships
Covered employers must provide employees who are in a domestic partnership the same employment benefits available to married employees. If the spouse of an employee receives employment benefits, then the domestic partner of an employee must also receive those benefits. If an employee receives an employment benefit as a result of being married, then that same benefit must be available to an employee in a domestic partnership.
A domestic partnership is defined as “two adults and their dependents ... that are registered as a domestic partnership (or equivalent) in any governmental jurisdiction offering a domestic partnership or similar registry, or who satisfy [seven specific] requirements.”
The city’s definition of a qualifying domestic partnership is broader than the state of Wisconsin’s definition. The state’s definition is only applicable to same-sex couples, while the city’s definition applies to any unmarried couple of the same or opposite sex. The city’s definition also mentions dependents of a domestic partnership. This raises the question of whether a benefit available for a married employee’s family will have to also be offered to the dependents of an employee’s boyfriend, girlfriend, or fiance(e).
Furthermore, the law does not provide guidance on what is equivalent to a domestic partnership, or what other government registries are similar to a domestic partner registry. The latter might become an important question if an employee shops around to find a government registry that will recognize his or her relationship.
“Benefit” under the new law means “any plan, program, or policy ... offered ... as part of the employer’s total compensation package.” The definition includes the usual employee benefits such as health, dental, disability, or life insurance benefits. But the “program or policy” language can also include other things such as bereavement leave, family medical leave, sick leave, memberships or membership discounts, moving expenses, pension and retirement benefits, or travel benefits. The guiding principle should be that if a plan, policy, or program is available to an employee, an employee’s spouse, or an employee’s dependents because the employee is married, then the same benefits may have to be provided for domestic partnerships. The covered employer must make a reasonable effort to provide that equal benefit, but if this is not possible, then the employee must be given the cash equivalent (the actual cost to the employer) of that benefit.
Organizations entering into or renewing a city contract in the following situations can expect to be covered by the equal benefits law: public works contracts where the value of the work exceeds the single-trade minimum (currently set at $48,000), recipients of more than $25,000 in city financial assistance, and service contracts exceeding $25,000. Subcontractors working under any of those contracts may also be required to offer equal benefits to their employees.
Notice requirements and reporting of violations
An employer covered by the equal benefits law will have to post a notice informing all employees of the organization’s obligations and also post a notice on how employees can file a complaint about any violations of the law. These notices must be posted in prominent locations in the workplace where they can be viewed by all employees.
Violations of the employer’s obligations may be reported to the city of Madison’s Department of Civil Rights by individuals and organizations. Under the law, any individual, partnership, joint venture, corporation, limited liability company, or partnership, trust, association, or other entity may report a violation. The broad range of complainants means a covered employer could face whistleblowing from a concerned citizen, an employee’s domestic partner, or even competitors.
Record-keeping and production requirements
All covered employers, and their covered subcontractors, must maintain records showing the benefits provided, or the cash equivalents paid to employees. If a complaint is filed with the city, the relevant records must be provided to the Department of Civil Rights within 10 business days of a date requested in writing. The investigated employer must also aid the city’s representatives in their investigations by providing access to the relevant people or records within 10 business days of a date requested in writing.
Employers entering into or renewing contracts with the city of Madison will now have to take steps to comply with the city’s new equal benefits law. The law requires employers to pay attention to what benefits they offer, who is eligible for those benefits, how employees are notified of their rights, and what records need to be kept and provided.
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