Union Leader: KNOW THE LAW – Gay Married Employee Benefits – 08/2010

August 9, 2010

This question was answered by Jeanmarie Papelian of the McLane Law Firm

Q.  I own a small automotive repair shop with 15 employees and have recently hired my first gay married employee.  What benefits do I extend to his partner?
A.  Effective January 1, 2010, New Hampshire recognizes marriages between persons of the same gender.   However, not all benefits available to married heterosexual employees are available to married homosexual employees.  That is because New Hampshire’s law conflicts with the federal Defense Of Marriage Act, (“DOMA”) which defines “marriage” for purposes of all federal laws as a legal union between one man and one woman, and a “spouse” as only a person of the opposite sex who is a husband or wife.  Accordingly, when the terms marriage or spouse are used in federal statutes, those words refer only to traditional married couples and not same gender spouses. 

In July 2010, a federal court in Boston ruled in two separate cases that the DOMA violates the U.S. Constitution.  This court decision received much press attention, and will reach the United States Supreme Court eventually, but the rulings mentioned apply only to Massachusetts and do not affect employers in New Hampshire. 

Many employee benefits are governed by federal law.  For example, the Employee Retirement Income Security Act of 1974, (“ERISA”) governs retirement plans such as 401(k)s and pension plans as well as welfare plans like medical, dental, long term disability and death benefit plans.  Because of ERISA preemption and DOMA, same gender spouses are not entitled to the same rights and benefits under private employer retirement plans as traditional spouses.  Accordingly, under current federal law survivor benefits and divorced spouse benefits cannot be awarded in the same fashion as with heterosexual married couples, nor does the Family Medical Leave Act, (“FMLA”) leave apply to employees who need to care for their same gender spouses, however, FMLA would only apply to you if you had more than 50 employees.

Crime victim leave, on the other hand, is required by state law, and same sex spouses should be treated as any other spouse.  All forms of voluntary leave, such as bereavement, maternity, paternity, adoption, personal or sick leave now clearly apply under New Hampshire law to same gender spouses. 

It is important to understand your responsibilities.  Employers must treat same gender spouses the same as traditional spouses in such situations to avoid violation of New Hampshire’s law prohibiting discrimination on the basis of sexual orientation and marital status.  If you did not formally update your employee policies to cover civil unions when they were legalized, now is definitely the time to do it.

Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
We invite your questions of business law.  Questions and ideas for future columns should be addressed to:  Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or emailed to