Employers: Watch for Potential Complication in New Domestic Partner Benefit

Most of its provisions are related to inheritance rights, but one aspect of Wisconsin’s new same-sex domestic partnership registry will impact human resources departments statewide.

The registry, signed into law as part of the 2009-11 state budget, has made same-sex couples legally eligible for Wisconsin Family and Medical Leave benefits if they meet certain criteria, but area attorneys warn of a potential complication that HR departments should be aware of.

The new state budget includes provisions to govern the procedure for forming and terminating a domestic partnership in the state. The primary employment aspect of the domestic partner registry is the qualification for family medical leave. Lawmakers have amended the Wisconsin Family Medical Leave law so that eligible employees in companies with 50 or more workers can qualify for up to two weeks of family medical leave in a calendar year for the care of a child, spouse, domestic partner, or parent with a serious health condition. The two weeks of leave is unpaid, but the leave does not have to be taken consecutively; it can be intermittent.

“It’s for the same kinds of qualifying medical care [as the previous law],” said attorney Tamara Packard, a partner with Cullen Weston Pines & Bach.

Also under the law, employers are required to post information about the new domestic partner law and their applicable company policy, according to attorney C. Wade Harrison, an associate member of Godfrey & Kahn’s labor and employment practice group in Madison. “And then what they also need to do is make changes to their written policy so that the benefits under the Wisconsin version of the Family and Medical Leave Act are also extended to domestic partners,” he said.

Same-sex couples interested in forming a domestic partnership may apply for a declaration of domestic partnership if they satisfy specific criteria. The couple must be of the same-sex, both parties must be over 18 years of age and competent to sign contracts, and both must not be married. They also must share a common residence, and they must not be closer in relationship than second cousins.

Complicating Matters

The Wisconsin Family Medical Leave statute is broader than the change specific to registered domestic partners. The Act now allows both same-sex registered domestic partners and same-sex and opposite-sex unregistered domestic partners to use family medical leave time for a partner or a partner’s parents.

“The budget bill had a new definition for domestic partners that’s a separate definition than for registered domestic partners,” Packard said. “It allows for opposite-sex as well as same-sex, and it does not require registration.”

Harrison said that compliance can get a little complicated because there now are two ways that an individual can be considered a domestic partner under state law. One of the ways is addressed under the new domestic partner chapter, Chapter 770, and this is for same-sex couples that meet the established criteria. The second mechanism, under Chapter 40.02, is “kind of the unregistered version of domestic partnerships,” Harrison said, and doesn’t require registration with the domestic partner registry.

“It can be a little tricky for employers, and they will have to be careful in applying these policies because they can have someone who is on the registry, so it’s very easy for the employer to determine that this person is officially a domestic partner,” he explained. “For people who satisfy this sort of secondary way to become domestic partner, there is no registry and no certification from the state, so employers will have to craft policies that comply with the law and also acknowledge this secondary way to become a domestic partner.”

An employer who is unaware of this secondary mechanism runs the risk of having a discrimination suit filed against them, however unintentional the discrimination may be, Harrison said.

Legal Wrangling

The new domestic partner benefits remain in effect while the legality of the same-sex registry is being challenged in court. Wisconsin Family Action, an organization that worked to pass the 2006 Constitutional amendment banning same-sex marriage in Wisconsin, has filed a petition before the Wisconsin Supreme Court. The group seeks to have the same-sex domestic partnership registry declared unconstitutional based on Wisconsin’s marriage protection amendment.

The marriage protection amendment, which passed with 59.4% of the vote, states that only a marriage between one man and one woman is valid or recognized as a marriage in Wisconsin, and that a legal status identical or “substantially similar” to that of marriage for unmarried individuals is not valid or recognized as a marriage.

Wisconsin Family Action contends that the same-sex registry creates a new legal status for same-sex couples that is “at least substantially similar to that of marriage.”

In a video posted on the Wisconsin Family Action Web site, President Julaine Appling said that because this registry “mimics and mirrors marriage,” Wisconsin Family Action and its attorneys believe it is unconstitutional. Said Appling: “In November 2006, 1.2 million Wisconsin citizens went to the polls and voted ‘yes’ for marriage, clearly indicating that they want marriage to remain between one man and one woman in this state, and that they are not interested in legalizing marriage by another name or having look-alike marriages. The domestic partnership registry is just that, marriage by another name.”

The view that the same-sex registry creates a new legal status for same-sex couples that is at least substantially similar to that of marriage is disputed by Fair Wisconsin, an organization that is pushing for marriage equality for same-sex couples.

For the time being, Katie Belanger, executive director of Fair Wisconsin, said her organization would focus on defending the registry, not on further expanding benefits for same-sex couples. “Next on our list of priorities is really defending this legislation, and making sure that the couples who are registering are still able to receive these protections, and that more couples are able to register as well,” Belanger said. “That’s really our short-term focus.”

Belanger chided proponents of the marriage protection amendment because in 2006, “they were extremely clear when they were telling their supporters in the Legislature, when they were telling the general public about what they were voting on, that the amendment would not prohibit the state from providing some limited protections to same-sex couples.”

Even with the registry, same-sex couples have a fraction of rights granted under state law to heterosexual married couples. If the day ever arrives when same-sex marriage is made legal in Wisconsin, gay couples will not necessarily have the full compliment of rights that heterosexual married couples have. Packard said state law provides over 200 rights, responsibilities, and protections with marriage, but federal law provides more than 1,100.

“You really don’t achieve marriage equality until both the state offers marriage equality and the federal government recognizes same-sex marriage,” Packard said. “It’s more complex than simply the state recognizing the marriage because of lot of the things married couples really benefit from are things that come from the federal government — like social security benefits and being able to file joint tax returns.”

Pro-Active Employers

In addition to challenging the constitutionality of the same-sex registry, Wisconsin Family Action is asking the state Supreme Court for a permanent injunction against the registry to prohibit its being implemented in Wisconsin’s 72 counties.

No matter how the legal dispute plays out, there is nothing that legally prevents businesses from extending a full or partial palette of job benefits to gay and lesbian employees and their domestic partners. Scores of Wisconsin public- and private-sector employers already provide domestic partner health insurance coverage, including Dane County notables like American Family Insurance, Alliant Energy, Madison Gas & Electric, and TDS Telecommunications Corp.

Employers extend these benefits, in part, to gain an advantage in employee recruitment or retention. TDS and its affiliates offer domestic partner benefits, including health care, dental, and vision coverage to employees, according to Drew Petersen, director of external affairs and corporate communications for the telecommunications firm. “Offering a full portfolio of benefit options to our new and existing employees,” he said, “affords TDS the ability to attract and retain top talent in our chosen markets.”

Belanger said that by providing health care insurance to domestic partners of their employees, companies are attracting and retaining the best and brightest, and they are more competitive. “I think it goes hand in hand,” she said. “It’s the company recognizing that if they treat their employees fairly and decently, they will start retaining and attracting quality employees.”

Editor’s note: In addition to family medical leave, the budget bill that establishes the same-sex domestic partnership registry provides that surviving domestic partners are entitled to:

• Inherit assets under Wisconsin’s intestacy statutes.
• Purchase or otherwise obtain a deceased partner’s home, vehicles, and tangible property.
• Obtain financial support from a deceased partner’s estate pending the estate administration process.
• Participate in abbreviated probate procedures upon the death of a deceased partner.
• Receive death benefits if the deceased partner was killed in the workplace or in the line of duty as a police officer or firefighter.
• Sue for a deceased partner’s wrongful death.
• Obtain victim compensation.