Legal Updates
New Jersey Enacts the Country's Third Civil Union Law
On December 21, 2006, New Jersey Governor Jon S. Corzine approved legislation providing homosexual couples the same legal rights as married couples in New Jersey. Joining Connecticut and Vermont, New Jersey is now the third state to enact such a law, with Massachusetts remaining the only state allowing homosexual marriages and California having implemented a domestic partnership law. Effective February 19, 2007, the New Jersey law authorizes same sex couples to enter into civil unions and grants same sex couples the same legal benefits, protections and responsibilities as married heterosexual couples.
As with the other states that have enacted similar laws legalizing civil unions and homosexual marriage, the employment-related implications of the new New Jersey law are complex, due in large part to the interplay between state and federal law. In particular, in 1996, the United States Congress passed the Defense of Marriage Act (the “DOMA”), which defined the word “marriage” in any federal law as a legal union between a man and woman. The DOMA further defined the word “spouse” as a person of the opposite sex who is a husband or wife. As a result, civil union partnerships will not be recognized as “marriages” under federal law (or state law for that matter) and same sex civil union partners will not be automatically entitled to “spousal” benefits under federal law.
The interplay of the DOMA and the new New Jersey civil union law is particularly complicated in the area of employee benefits. Because many benefit plans are governed by the federal Employee Retirement Income Security Act (“ERISA”), which preempts state law, the New Jersey civil union law cannot mandate that employers treat civil union partners the same as opposite sex spouses with respect to ERISA benefit plans. However, ERISA does permit an employer to choose to amend its ERISA benefit plans in order to provide benefits to same sex civil union partners. Accordingly, when considering how the civil union law will affect benefit plans, one of the first tasks for an employer is to decide whether and to what extent the employer wants to allow its benefit plans to cover same sex civil union partners.
On the other hand, insurance plans (including, but not limited to, group medical and dental) are generally excluded from ERISA coverage and, accordingly, are governed by state law. As a result, employers participating in group health and dental insurance plans will be required to extend spousal coverage to civil union partners of employees participating in such plans in New Jersey.
All employee benefits that are governed by New Jersey law, such as bereavement leave and the New Jersey Family Leave Act, must now be extended to civil union partners. Indeed, where federal law is not implicated, the New Jersey law is clear that same sex couples who enter into civil unions will have the same rights and obligations as opposite sex married couples.
Accordingly, we recommend that employers with New Jersey employees now implement personnel policies in the same manner for same sex civil union partners as for heterosexual married couples. Employers should promptly review all personnel practices and policies to ensure that the definitions apply to both opposite sex and same sex couples.
In addition, employers with employees in multiple states are now faced with a myriad of conflicting laws. Thus, an employer that employs a partner in a same sex couple in Massachusetts, New Jersey, California and Colorado will now be confronted with completely different obligations in each state. We advise multi-state employers to tackle these issues promptly and consult with experienced counsel in order to comply with all applicable laws and avoid discrimination claims.
We are available to address any questions you may have, and to assist as needed.
