July 2015, Page 5 Archive

The same-sex marriage argument has finally been settled in the U.S — at least from a legal standpoint. Every state is now required to allow and acknowledge same-sex marriages. This has significant implications for employers. Here’s a breakdown of what they are. 

As complicated and as sensitive of an issue as this is, the fallout from the Supreme Court’s ruling in Obergefell v. Hodges is actually quite simple: Same-sex married couples will — in most cases — need to be treated exactly the same as opposite-sex married couples (one exception may be in self-insured health plans; it’s still unclear how the ruling will apply to these plans).

The good thing about this ruling — at least from an employer standpoint: It streamlines the benefits administration process significantly. In a nutshell, if a benefit is offered to employees’ opposite-sex spouses, it should also be offered to employees’ same-sex spouses.

In instances were federal and state law doesn’t specifically carve out protections for same-sex spouses (again, like in self-insured plans), employers would run the risk of violating anti-discrimination laws if they end up treating same-sex spouses differently than opposite-sex spouses.

As a result, the best — and certainly the safest — move is to treat everyone equally.

State, federal law aligned … but it may take time

Helping to streamline benefits administration, the ruling helps align state laws with federal law.

Example: Since the Supreme Court shot down the Defense of Marriage Act’s definition of “spouse” as only including a member of the opposite sex, same-sex spouses have been recognized for federal tax purposes and protected under federal benefits laws — like the FMLA. But some state insurance departments, state taxing authorities and state domestic relations courts weren’t required to recognize same-sex marriage.

That has now changed — or at least it will once every state gets on board with this ruling.

In some states, like Texas, governing authorities have said they’ll wait for guidance on how to handle same-sex marriages before fulling aligning themselves with the High Court’s decision.

This may mean several months may pass before couples are allowed to marry in states that up until now haven’t recognized same-sex marriage.

This also means that while employers certainly can start adding same-sex spouses to their benefits plans, they may want to hold off on eliminating domestic partner benefits (should they wish to do so) until their states fully align with the ruling and same-sex spouses have ample time to get married. How long this will take may vary from state to state.

Domestic partner benefits obsolete?

For those employers that do wish to continue offering domestic partner benefits even after their states have started recognizing same-sex marriage, here’s a word of warning to you: You may have to offer domestic partner benefits to opposite-sex couples as well — or risk facing discrimination charges.

Up until now, domestic partner benefits were a way to extend the same benefits reserved for employees’ spouses to those partners of employees who couldn’t get married. But now that same-sex couples can get married the same as opposite-sex couples, it may now be viewed as discriminatory to only offer domestic partner benefits to same-sex couples.

Note: Some states require insured plans to offer domestic partner benefits.

The reasoning behind the ruling

The case was brought before the Supreme Court by 14 same-sex couples in Ohio, Michigan, Kentucky and Tennessee, who sued state officials because of their states’ bans on same-sex marriage or officials’ refusal to recognize same-sex marriages that were legally performed in other states. The charging parties said their equal protection and due process rights under the U.S. Constitution had been violated.

Federal district courts agreed with the plaintiffs, but the Sixth Circuit reversed their rulings.

As a result, the Supreme Court agreed to settle two questions:

• Does the Constitution require all states to perform same-sex marriages?
• Does the Constitution require states to recognize same-sex marriages legally performed in other states?

In a 5-to-4 decision, the High Court ruled the answer is “yes” to both questions.

The majority said marriage is a “fundamental right,” and the Constitution’s equal protection and due process clauses protect individuals from being deprived of that right.

Cite: Obergefell v. Hodges

OK, so you’re probably not going to run into this exact situation in your workplace. This case is still a good reminder of the perils of violating the Genetic Information Nondiscrimination Act.  

We can’t sum up the background of the case any better than federal district court judge Amy Totenberg:

Atlas Logistics Group Retail Services operates warehouses [in Atlanta] for the storage of products sold at a variety of grocery stores.

So one could imagine Atlas’s frustration when a mystery employee began habitually defecating in one of its warehouses.

To solve the mystery of the devious defecator, Atlas requested some of its employees, including Jack Lowe and Dennis Reynolds, to submit to a check swab. The cheek cell samples were then sent to a lab where a technician compared the cheek cell DNA to DNA from the offending fecal matter. Lowe and Dennis were not a match.

The two sued under GINA, which generally prohibits employers from requesting genetic information from employees.

The upshot: A federal jury recently awarded Lowe and Reynolds $2.2 milliom for pain, suffering and mental anguish. Judge Totenberg had ruled in May that the company’s actions. had violated GINA.

Reuters reported that the company said it was likely to file an appeal.

By the way, the devious defecator has never been identified.

As the go-to person for all things HR, you naturally want to be helpful when people ask for something. Often the answer must be “No.”  

But you know from experience that being diplomatic when you say “No” always works better.

Here are three ways you can do just that:

1) Let the person know that you hear him

First acknowledge the request: “I realize that this is important” or “Ordinarily, I’d be able to help you with that right now.”

Customer service pros will tell you that the biggest key to defusing an angry/frustrated customer is letting the customer rant about the problem and saying, “I can see how frustrated that would make anyone.”

Same basic principle goes for listening to a problem that you can’t deal with right away.

2) Explain the situation

Nothing wrong with explaining why your answer must be “No.”

Just keep it brief (you shouldn’t apologize for being busy): â€œI’m working on a project right now” or “I can’t take time away from X, Y and Z.”

3) Turn the ‘No’ around

Make it positive by giving the person an alternative.

For example: “This resource may help you,”?or “Have you asked this person about it?”

Some folks would rather run to known problem-solvers – like yourself! – than spend time figuring out how to fix problems themselves.

Ideas worth sharing with your staffers

You’ve probably dealt with managers bypassing you and going directly to one of your staffers for help. This can intimidate some employees, and make them feel like they have no choice but comply.

Remind your staffers:?Don’t just drop an important task because someone’s got a problem (unless of course it’s an emergency).

They’re allowed to say “No.” Just refer them to points 1, 2 and 3 above.

In this document, we’ve pulled together relevant research and advice based on both expert research and the experiences of our own customers. You’ll find something for all types of HR leaders to help your company to make the most of your most valuable resource – your people. Here’s what you’ll find:

• Five ways to create a high-performing global culture
• Six ways to dial in your talent strategy
• Five tactics for compensation managers to shift the business

Click here to learn more!