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Court Ruling and DOL Proposal Adds Confusion to Wisconsin Same-Sex Couple Access to Federal FMLA Benefits

By Bruce B. Deadman & Laurie E. Meyer

On June 6, Federal District Judge Barbara Crabb held in Wolf et al v. Walker that the prohibition against same-sex marriages in Wisconsin found at Article XIII, § 13 of the Wisconsin Constitution violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Initially, Judge Crabb, unlike judges in other states faced with similar cases, did not stay the effect of her ruling pending anticipated appeals by the State to the Seventh Circuit Court of Appeals. As a result, all but 19 of Wisconsin’s counties began issuing marriage licenses to same-sex couples, and an estimated 700 marriage ceremonies were performed pursuant to those licenses.

On June 13, Judge Crabb issued an order to delay implementation of her original decision regarding same-sex marriages to allow appeals to be exhausted. As a result, the legal effect of the same-sex marriages performed from June 6 to June 13 remains in limbo.

Coincidentally, on June 20, U.S. Secretary of Labor Thomas E. Perez announced a proposed rule that would extend Family and Medical Leave Act (FMLA) protections to all eligible employees in legal same-sex marriages, regardless of the state in which they live.

This Alert focuses on the relationship between same-sex marriage and access to State and Federal FMLA in Wisconsin, and the impact on that relationship should Judge Crabb’s decision be upheld on appeal, and/or should the Department of Labor’s (“DOL”) proposed rule become law.

Current Rules Do Not Provide Wisconsin Same-Sex Couples With Federal FMLA Benefits

Under current DOL rules, the definition of “spouse” under the Federal FMLA applies only to same-sex spouses who reside in a state that recognizes same-sex marriage. In other words, a same sex couple married in Massachusetts (a state which recognizes and performs same sex marriages) but residing in Wisconsin would not be entitled to Federal FMLA benefits in Wisconsin.

The Proposed “Place of Celebration” Rule

The proposed rule would amend the definition of “spouse” found in the FMLA regulations, at 29 CFR sections §825.102 and §825.122(b) to look to the law of the state where the marriage was entered into – as opposed to the law of the state in which the employee resides – to determine if the employee is eligible for FMLA rights that are based on marital status. A similar provision would include same-sex marriages conducted abroad if that marriage would be valid in any one state.

What’s Next for Wisconsin Same-Sex Married Couples Under the Federal FMLA?

Married same-sex couples in Wisconsin could become eligible for Federal FMLA under at least two scenarios:

First, if Judge Crabb’s decision is upheld on appeal, Wisconsin would then appear to become a state which allows or, perhaps more accurately stated, does not prohibit same-sex marriage. Married same-sex couples in Wisconsin would then be eligible for Federal FMLA benefits if they were married in Wisconsin or in another state that recognizes same-sex marriage.

However, regardless of whether Judge Crabb’s decision is upheld or reversed, if DOL’s proposed “Place of Celebration” rule goes into effect (and withstands the legal challenges certain to come), same-sex couples validly married elsewhere but residing in Wisconsin would also be eligible for Federal FMLA benefits.

And what about those 700 same-sex couples married between June 6 and June 13? Their status remains a matter of debate that may not be resolved for some time.

State FMLA Rights Largely Unaffected

Under Wisconsin FMLA, eligible employers must provide FMLA benefits to “domestic partners” as well as married couples. The Wisconsin FMLA definition of “domestic partner” does not require persons to register with their county clerk as “domestic partners” as provided for in Chapter 770 of the Wisconsin Statutes in order to be eligible for State FMLA benefits. Instead, an employee can register under Wis. Stat. §770.01 to be a “domestic partner” for state FMLA purposes or can be eligible for FMLA benefits by satisfying the standards that appear in Wis. Stat. §40.02(21d).

The latter definition of “Domestic Partnership” states:

(21d) “Domestic partnership” means a relationship between 2 individuals that satisfies all of the following:

(a) Each individual is at least 18 years old and otherwise competent to enter into a contract.

(b) Neither individual is married to, or in a domestic partnership with, another individual.

(c) The 2 individuals are not related by blood in any way that would prohibit marriage under s. 765.03.

(d) The 2 individuals consider themselves to be members of each other’s immediate family.

(e) The 2 individuals agree to be responsible for each other’s basic living expenses.

(f) The 2 individuals share a common residence. Two individuals may share a common residence even if any of the following applies:

1. Only one of the individuals has legal ownership of the residence.

2. One or both of the individuals have one or more additional residences not shared with the other individual.

3. One of the individuals leaves the common residence with the intent to return.

Many of the same-sex couples that would also seek to marry may fall within this definition. Consequently, employees in these relationships may be entitled to Wisconsin FMLA benefits, even though they have not married or registered as “domestic partners.”

If you have any questions or comments regarding this news, please contact your Davis & Kuelthau, s.c. attorney or the authors, Bruce B. Deadman at 920.431.2228 / and Laurie E. Meyer at 414.225.1419 /