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San Francisco’s same-sex marriage licenses promise to give gay couples the same workplace rights enjoyed by their heterosexual counterparts. But with the validity of the marriage licenses still up in the air, employers are grappling with how to treat the newlyweds. Some employment lawyers are already receiving phone calls from businesses wondering how married gay couples fit into workplace policies involving everything from family leave to medical benefits. And the marriages could lead to some unexpected complications. “They’re looking for clarification,” said Jeffrey Tanenbaum, the co-chair of Nixon Peabody’s West Coast employment law practice. With the help of two associates, Tanenbaum is drafting an alert for clients detailing the various laws that are impacted by the controversial marriage licenses. Employment attorneys say they haven’t yet heard of instances in which a worker with a same-sex marriage license has asked an employer for spousal benefits. But with nearly 3,000 same-sex marriage licenses already issued, most believe it’s only a matter of time. A San Francisco employer who refuses to provide spousal benefits to a married couple of the same sex runs the risk of getting hit with claims such as gender discrimination, sexual orientation discrimination and marital status discrimination, according to attorneys. If a company’s employee handbook promises spousal benefits, a person with a San Francisco marriage license could also claim breach of contract. “Here you’re not dealing with a state statute, but a general contract issue,” said Seyfarth Shaw partner Gilmore Diekmann. “It’s probably a much more viable claim than a gender discrimination claim under FEHA.” Of course, for many Bay Area companies, recognizing gay couples and providing them with benefits is not a radical change. In San Francisco, companies that do business with the city are required to offer domestic partner benefits. And many businesses that don’t work directly with the city voluntarily offer their workers domestic partner benefits. “For an employer to be competitive in the Bay Area, having domestic partner benefits is definitely a plus,” said Preston Gates & Ellis employment attorney Michael McCabe. But employers who want to go one step further and offer spousal benefits to married gay couples could find that their hands are tied. Insurance companies may simply refuse to provide coverage to married gay couples. “It would all depend on whether the insurance company would recognize the marriage. And my guess is they would not because insurers are covered by state law, not by local law, and state law defines only a marriage between man and woman,” said Reed Smith Crosby Heafey attorney Lynn Bersch. “It leaves the employer in an untenable position where they are unable to provide what should be the benefits of the spouse that they’re governed by under city ordinances,” Bersch said. As if the situation wasn’t complicated enough, domestic partnerships are defined, under both the state’s family code and San Francisco municipal law, as a relationship in which neither party is married. Thus, newlywed gay couples are technically required to file a notice of termination of domestic partnership. Of course, terminating a domestic partnership means forfeiting benefits which may not necessarily be replaced with spousal benefits. “I’m sure there’s going to be a lot of head scratching in terms of what do we do in the interim while the validity of these marriages are validated through the courts,” said Preston Gates’ McCabe.

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