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With Massachusetts poised to sanction same-sex marriages on May 17, and with the laws on same-sex unions in flux in several other states, in-house legal departments across the country are trying to figure out how to cope with this new wrinkle affecting employment law. Court battles are under way in California, Florida, New Jersey, New York, New Mexico, Oregon and Washington state over moves by local officials to marry same-sex couples. “It’s going to be all over the country,” said Sherwin Simmons, a corporate benefits attorney with Steel Hector & Davis in Miami. “I’ve been getting calls from many lawyers wanting to know how to advise their clients on this.” Simmons advised, “At the board level, you’ve got to get them to start thinking about these developments now. It’s not something that they can just sit by and say we’ll deal with it when the time comes, because the time is here.” Simmons said that means companies should begin studying the expansion of same-sex benefits but not necessarily implement them yet, unless they want to do so for policy reasons, because “this is going to take all kinds of twists and turns.” The only place where the law is clear, he added, is Massachusetts — at least for the next two years. In its landmark decision last November, in a case brought by a gay couple denied a marriage license, the Supreme Judicial Court of Massachusetts construed the state’s constitution to allow same-sex marriage. It allowed such marriages to begin in another 180 days, on May 17. Goodridge v. Department of Public Health, 798 N.E. 941. The court said that the state constitution “affirms the dignity and equality of all individuals” and “forbids the creation of second-class citizens.” But Massachusetts lawmakers have introduced a constitutional amendment to ban the marriages and establish civil unions instead. Such an amendment would need to be approved by two consecutive legislatures to be placed on the ballot. The earliest that could happen is November 2006. In the interim, the court ruling explicitly requires employers in the state to offer the same benefits — such as health and life insurance coverage, medical and family leave, prepaid legal plans or relocation expenses — to married same-sex partners as they do to heterosexual spouses. Karen D. Abbott, general counsel of Animation Technologies, a multimedia company in Boston with 50 employees, said the company “recently added a rider” to its health insurance coverage, offering benefits to domestic partners. So far, one employee has applied for the benefit. She did not expect the company’s cost to be significant. Garry B. Watzke, general counsel at Iron Mountain Inc., a financial services firm headquartered in Boston, said the company already offers domestic-partner benefits. He said the benefits came about because the company has operations in California, where some municipalities require them and where couples on the state registry of domestic partnerships are entitled to them. Thomas M. Greene, a corporate benefits attorney in Boston, said many other large firms in Massachusetts already offer domestic partner benefits for policy reasons, and to be more competitive in recruiting and retaining employees. Since the 1980s, nearly 6,000 U.S. employers have extended medical coverage and other benefits to about 125,000 same-sex domestic partners of their employees, adding about 1 percent to 2 percent in costs, according to the Human Rights Campaign, an advocacy group in Washington. But for those Massachusetts companies that do not now offer the benefits, Greene, an associate in Boston’s Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, said that the expansion of benefits and the setting up of dual state and federal systems will have a financial impact. The federal government does not recognize same-sex marriages for income tax purposes or for federal programs such as Social Security or the Employee Retirement Income Security Act. But the largest cost impact, Greene said, will be on smaller firms that do not now offer these benefits, and that often do not have in-house counsel. If a small company offers no benefits to heterosexual couples, it will not be required to offer any to same-sex couples, he said. Greene said the Massachusetts law may “force the issue to the forefront” elsewhere across the country. “Massachusetts companies with affiliates in other states will probably make [benefits policy] uniform at other locations,” he said. “And more employees in other states will be motivated to ask for such benefits, and more employers will find they need to offer them to be competitive.” The marriage issue is especially hot in California, where earlier this month six gay couples sued the state for the right to marry after the state’s top court stopped San Francisco from issuing same-sex marriage licenses. In the March 11 ruling, the California Supreme Court said, “This stay does not preclude the filing of a separate action in [a lower] court raising a substantive constitutional challenge to the current marriage statutes.” The six couples filed suit the next day. John Kozero, a spokesman for the Novato, Calif.-based Fireman’s Fund Insurance Co., said the legal and human resource departments are “actively monitoring same-sex marriage issues” in the 32 states where the company operates, and “we will implement any additional benefits as required.” He added that the company already offers domestic-partner benefits that include medical, dental and life insurance, long-term care and funeral leave. National companies like Fireman’s realize that the law varies markedly across the country, and is under attack somewhere almost daily. According to a recent study, 35 states have passed laws banning same-sex marriages; 10 have no laws either way; Alaska, California, Hawaii and the District of Columbia have some type of official recognition for same-sex couples; and Vermont has a law legalizing same-sex “unions.” Official state registries and Vermont’s same-sex union law convey some or most marriage benefits, but these also can vary from state to state. That means “employers may have to deal at the state and local levels with different definitions of ‘spouse’ and perhaps ‘issue’ and ‘children’ for state and private welfare benefit plans,” Simmons said.

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