Legal Commentary

Domestic Partner Benefits: Why You Should Care
by Attorney Tamara B. Packard
Cullen Weston Pines & Bach LLP¹

In Wisconsin, and throughout the country, there is a growing recognition of the advantages of what are commonly called “domestic partner benefits:” fringe benefits such as health insurance, bereavement leave, and family medical leave, which are extended to the family of an unmarried employee, in much the same way such benefits are extended to the family of a married employee. Domestic partner benefits are one way to provide protections and economic benefits equally to all union members and their families. These benefits are also useful to employers in recruitment and retention efforts, and thus offer a rare “win-win” opportunity at the bargaining table. This article discusses the author’s views or the benefits of and barriers to negotiating domestic partner benefits, particularly health insurance benefits, and highlights a looming threat to those benefits.

Families and Fringe Benefits

As members of the Wisconsin Professional Police Association, you know that the fringe benefits your representatives negotiate for you don’t just benefit you: they also benefit your family — that is, if you are in a state-sanctioned marriage. But what about your union brothers and sisters who are not in state-sanctioned marriages? Their numbers are not as few as you might assume. Approximately 49 percent of adults in the United States are in relationships that are not recognized by the government with a marriage license. Whether married or not, of all couples living together, just under half of all heterosexual couples have minor children in the family, one-third of all lesbian couples have a family that includes minor children, and one out of five families headed by a gay male couple include minor children.

Given such statistics, it is virtually guaranteed that either you or others in your local bargaining unit are, or will in the foreseeable future, be in a committed but non-marital relationship and that this family may well include minor children. Those employees and their families are doing the work of marriage: the non-marital partner worries about the danger the officer puts himself or herself in every day to protect our community; she or he worries and cares no less because the couple has no marriage license. The individuals in the relationship support one another emotionally and often financially in good times and bad, despite no legal requirement to do so. The couple raises the children to become productive members of society and the children depend on both parents to achieve that goal, even when there are no blood or legal ties to the second parent.

These families should receive the same employment benefits as the families of employees in state-sanctioned marriages. Unions have a responsibility to protect equal rights in connection with collective bargaining, economic benefits, legislation, and any governmental action that adversely affects their members.

Who Has Domestic Partner Benefits, And Why?

Public sector employers in Wisconsin, such as the City of Milwaukee, the City of Madison, and Dane County currently extend domestic partner benefits to their employees, as do a significant number of school districts throughout the state. These benefits are also a strong trend in the conservative and capitalistic corporate world, where profit is the motivation for any corporate decision. By the end of 2005, at least 229 of the Fortune 500 companies offered domestic partner health insurance benefits. Over 90 private companies in Wisconsin offer domestic partner benefits, including six of the ten largest Wisconsin companies.

Why, then, are both public and private employers interested in offering domestic partner benefits? In addition to providing equal protections and benefits to those who do the same job, domestic partner benefits also assist with the recruitment and retention of talented employees. As baby-boomers begin to retire, competition for younger people to replace them is fierce: many more people are retiring than there are people entering the workforce. “Generation X” experts like Rebecca Ryan indicate that those who are entering and newer to the workforce are often looking for employers and co-workers who value diversity, open-mindedness, and forward thinking. Negotiated domestic partner benefits signal to candidates that the union, its members, and the employer all have such qualities, which leads to quality hires, increased loyalty, and less turnover.

That is not to say that all or even most employees who are attracted by domestic partner benefits will actually sign up for them. To the contrary: domestic partner benefits are truly a win-win proposition. The union gains a benefit that allows all members to have equal compensation, and the employer gains a valuable recruitment tool, but few employees actually take advantage of the benefit. In other words, domestic partner benefits are both valuable and cheap. In Madison, less than 1.5 percent of union members represented by Madison Teachers, Inc., utilize the domestic partner health insurance benefits available to them under their collective bargaining agreement. There are numerous reasons for this, the most obvious being that few families are fortunate enough to be able to afford only one working adult, and thus so long as the partner’s employer offers health insurance, there is no need to utilize the benefit. Also, the benefit is taxed as income for unmarried couples, unlike the exemption from tax provided for married couples by IRS rules, so there is a financial disincentive to utilize the benefit.

In addition to the low participation and therefore low overall cost associated with negotiated domestic partner benefits, the actuarial data show that, on average, the families of unmarried employees cost the same or even less to insure than the families of married employees. About half of those who utilize domestic partner health insurance are in heterosexual relationships, and the other half are in same-gender relationships. Fears about catastrophic AIDS claims have no basis in fact. Furthermore, this group uses pregnancy benefits less than married employees, and pregnancy is the largest cost component of most insurance groups’ inpatient charges. So extending health insurance coverage to the families of unmarried employees should not cause the group’s rates to increase more than they otherwise would.

Problems Experienced in Negotiating Domestic Partner Benefits
Among the barriers to negotiating domestic partner benefits are concerns that the benefits will be abused. “How can we tell this is a real family,” skeptics wonder, “in the absence of a marriage license?” They worry that employees will dishonestly represent themselves to be in an unmarried but committed relationship with another person simply in order to get that person covered on the employee’s health insurance. Yet wouldn’t it be more socially acceptable to claim to be married, or even to get married, in order to accomplish the same goal? It would also be easier: most employers and insurance companies do not require proof of marriage to provide coverage to legal spouses, yet they do require some proof of a marriage-like relationship for access to domestic partner benefits. Domestic partner benefits have been offered since the 1980s, and no evidence of widespread abuse exists. Indeed, the employer-employee relationship is one that depends largely on trust: from the use of sick leave to access to confidential information, employers must approach the employment relationship from a position of trust. Hire trustworthy employees, and an employer lessens the risk of abuse of trust in a whole variety of ways.

Another barrier employees have found in negotiating domestic partner health insurance benefits is that some private insurance companies must be convinced to offer them. Fortunately, however, the list of insurance companies that offer these benefits is growing, and it is easier and easier to convince the hold-outs to offer them if they intend to remain competitive. Unfortunately though, those employers who participate in the Wisconsin health insurance pool are conclusively prevented from offering such benefits, as the pool does not allow for them and cannot do so without legislative approval, which is unlikely to occur given current legislative leadership.

Finally, some employers, as well as some union members, may be uncomfortable about recognizing families not comprised of a heterosexual couple whose marriage is sanctioned by the state and their biological or legally-adopted children. They may be concerned that by negotiating domestic partner benefits, they will be viewed as “pro-gay.” Yet, as noted earlier, half of those employees who utilize domestic partner benefits are in heterosexual relationships. And poll after poll in Wisconsin, as well as nationally, show that a solid and growing majority of people support extending health insurance and other benefits and legal protections to the families of gay and lesbian workers. Opposition to domestic partner benefits may be vocal, but in terms of numbers, it is the minority position.

The Proposed Constitutional Ban on Civil Unions and Marriage for Gay Couples

Wisconsin voters will decide on November 7, 2006 whether to add the following language to the Wisconsin Constitution:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

Marriage is already defined by state law as between husband and wife, so the first sentence is redundant and unnecessary: gay and lesbian couples cannot marry in Wisconsin. The second sentence, however, is intentionally vague: the drafters have said publicly that they want Wisconsin courts to decide what it means. And although supporters of the Wisconsin ban claim that it would not affect domestic partner benefits, experience in other states teaches that we should not trust that claim.

In Ohio and Michigan, courts currently are considering arguments that domestic partner benefits provided by public sector employers are illegal under similar amendments passed in those states in 2004. The argument is that under the amendments, public employers cannot recognize the marriage-like relationship between the employee and his/her non-marital spouse.² In Michigan, this argument is being made by the state’s Attorney General, and a decision from the Michigan Court of Appeals is expected soon, perhaps even before this article is published, which will surely be appealed to the Michigan Supreme Court. In Ohio, the argument is advanced by a national extreme anti-gay group and a far-right-wing Ohio legislator, and the case is still in trial court.

In both of those states, those who advocated for the passage of the amendments claimed that the bans would not affect domestic partner benefits, just as they now claim in Wisconsin. Yet now in both Ohio and Michigan, those benefits – benefits which families rely on to treat serious illness – are in jeopardy. Additionally, in Michigan, the state administration had just bargained domestic partner benefits for unionized state employees, but when the ban passed, the governor yanked those benefits just before the deal was finalized. Thus, just the passage of the amendment was enough to result in a breakdown of the collective bargaining process and the loss of bargained-for benefits that would have benefitted families and union members throughout the state, and to remove the benefits from the table for all future negotiations.

The threat to union efforts to improve the lives and economic status of their members that is represented by the proposed amendment to the Wisconsin Constitution has inspired numerous unions in Wisconsin to publicly oppose the ban and work to defeat it. These unions include the Wisconsin State AFL-CIO, AFSCME Council 40, SEIU District 1199W, the Milwaukee Labor Council, as well as others, and more are expected to make their opposition to the ban publicly known soon.

Conclusion

Negotiating for domestic partner benefits is one small way for employees to gain equal pay for equal work, by providing health insurance coverage for their loved ones regardless of marital status. That’s a win for the union and its members. Just the fact that these benefits are available is a valuable recruitment and retention tool, yet very few employees actually sign up for them. That’s a win for the employer. Consider bringing domestic partner benefits to the table at your next bargaining session. Also consider the potential harm to workers and their families that is represented by the proposed constitutional ban on civil unions and marriage for gay and lesbian couples, oppose the amendment, and vote “no” in November.

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