by Armando V. Riccio, Esq.
1. Revise Your Anti-Discrimination Policies and EEO Statements. The Domestic Partnership Act (“DPA”) amends the New Jersey Law Against Discrimination (“NJLAD”) to prohibit discrimination on the basis of domestic partnership status. Employers should distribute updated anti-discrimination policies along with a copy of the internal complaint procedure to all employees. Of course, you should require everyone to sign an acknowledgement of receipt, maintain the original signed acknowledgement in the employee’s personnel file, and a duplicate copy of all signed acknowledgements in a separate folder. Make sure you include the revision in your handbook, policy manuals, and paper or electronic postings.
2. Train Staff, Supervisors and Upper Management. As with any protected class status, a domestic partner could maintain a discrimination, hostile work environment, and/or retaliation claim against an employer. Since the DPA recognizes domestic partnerships comprised of same sex partners, or opposite sex partners over the age of 62, the same set of facts which provide the basis for a discrimination claim based upon domestic partnership status will also support a claim of discrimination based upon sexual preference or orientation, marital status, or age. In order to avoid such claims, employers should promptly identify and train staff who are privy to domestic partnership issues, such as benefits staff. Additionally, all supervisors should be informed of the DPA, the point person for addressing DPA issues, the importance of taking prompt effective action in the event of a complaint or upon learning of any act of discrimination, hostile work environment or retaliation, and the repercussions for failing to do so. Make sure interviewers understand that, as with any protected class, it is impermissible to inquire about domestic partnership status.
3. Identify, Designate and Train A Point Person For Handling Domestic Partnership Issues. The DPA requires that domestic partners meet certain criteria, supply particular proofs, as well as execute and file certain documents with the local registrar. Provided the DPA’s criteria are met, the local registrar issues a Certification of Domestic Partnership (“Certification”). Employers and their staff need not and should not concern themselves with the validity of the DPA or a Certification. Instead, the employer should obtain a blank copy of a Certification from the local registrar and provide it to the designated point person so that individual can become familiar with the document. The point person (most likely a member of your benefits department) should also ask the local registrar of the ways to determine whether the Certification is authentic before the issue ever arises. In the rare instances where there is some articulated basis to question the genuineness of the Certification, the employer’s point person should contact the local registrar’s office for confirmation or access the information through the New Jersey State Registrar. Note, the DPA recognizes domestic partnerships formed under the laws of other states which also recognize such relationships and, therefore, the Certification or documentation could vary. In order to limit potential exposure to employment claims under the DPA, employers should maintain the Certification with the same level of confidentiality provided other employment records and identify, designate, and train a point person for handling domestic partnership issues. It is also suggested that the point person review the provisions of the “Notice of Rights and Obligations of Domestic Partners” available from the local registrar’s office.
4. Update Your Health Insurance Documents and Distribute The Updates. Private employers are not required to provide an employee’s domestic partner with health insurance. The DPA merely requires health and dental insurance companies to issue policies which make domestic partnership coverage available to employers. Accordingly, private sector employers which offer such coverage may require an employee to pay all or part of the cost of coverage for a domestic partner and should provide a general notice to employees of the availability of domestic partner coverage. Employees should be instructed to contact the designated point person for further details and rate information. Note, under a private sector employer’s pension plan, surviving spouse benefits are not automatically payable to domestic partners since federal law only recognizes such for “spouses.”
Domestic partners of New Jersey State employees are covered under the State health benefits and retirement systems. County and municipal employers, as well as local boards of education (“local public sector employers”), also have the option of extending domestic partner coverage to their employees. A local public sector employer participating in the State health and pension benefit plans can extend, at its option, coverage under the State health benefits plan, State pension benefits plan, or both. In order to do so, the local public sector employer must adopt a resolution. Once the resolution is passed, it must be filed with the New Jersey Division of Pensions and Benefits. Employees should also be informed that they must provide a copy of their Certification to the Division at the time they list their domestic partner as their beneficiary. Local public sector employers can also require employees to pay all or part of the cost of coverage for a domestic partner.
Employers should amend their group health plans and summary plan descriptions to require submission of the Certification or proof of a domestic partnership established under the laws of another State in order to qualify for coverage.
5. Provide Notices To Employees Applying For DPA Coverage. In the event a domestic partnership is terminated, the DPA requires the former domestic partner to provide written notice of such to third parties (e.g., an employer or its benefit plan) to whom the domestic partner provided a Certification in order to qualify for any benefit or right from that third party. Any actual loss associated with the failure to provide notice of the terminated domestic partnership can be recovered from the partner who was obligated to provide the notice. Employers should provide a notice to employees applying for benefits pursuant to the DPA which describes the employee’s obligations, the potential repercussions, authorizes payroll deductions for payment of benefits (if not paid for by the employer), and explains the cutoff dates for cancellation of benefits.
6. Update Your COBRA Process. Employers which provide domestic partnership coverage should update their COBRA process so as to include notices to the employee and/or the domestic partner based upon a qualifying event. For example, if the employer receives notice the domestic partnership is terminated, the employer should issue a COBRA notice to the former domestic partner. If the employee is terminated, a COBRA notice should be issued to the employee and their domestic partner.
7. Collect Federal Withholdings Tax. Although federal law provides an exception to taxation of the value of health benefits provided to spouses and eligible dependants, no exception is made for a domestic partner who is not an eligible dependant. In other words, the value of such benefits will be taxable income to the recipient under federal tax law. Hence, the employer must treat the benefit as taxable and withhold federal income, Social Security and Medicare taxes on its value unless the employee provides a certification that the domestic partner meets the federal requirements for a dependant. Employees cannot use pretax dollars under Section 125 plans to pay for the benefit. Nor can employers offer or employees make use of Section 125 plans to pay for otherwise covered plan items for a domestic partner.
8. Recognize The Limits Of The DPA. Neither the Family Medial Leave Act or the New Jersey Family Leave Act recognize domestic partnership status or leave time associated with the care of a domestic partner.
©2004 Capehart & Scatchard, P.A.
