Posted September 24th, 2013 in Top Stories

Department of Labor issues its first interpretation of the Supreme Court’s decision in United States v. Windsor

On September 18, 2013, the Department of Labor (“DOL”) issued its first interpretation of the Supreme Court’s decision in United States v. Windsor which invalidated Section 3 of the Defense of Marriage Act.  In Technical Release No. 2013-04, the DOL advised that the use of the term “spouse” in DOL regulations, rulings, opinions, and exemptions interpreting the Employment Retirement Income Security Act of 1974 (“ERISA”),  should be read to include individuals married under any state law, regardless of the state of residence.  As a result, employees in valid same-sex marriages from any state are to be considered married under the DOL’s ERISA regulations, even if their state of residence does not recognize their marriage.

While the guidance purports to only extend to ERISA, the language of the guidance indicates that future DOL interpretations will likely focus on the state of celebration and not the state of residence when defining who is a “spouse” under federal laws.  Most notably, current Family and Medical Leave Act (“FMLA”) regulations specifically define spouse based on an employee’s state of residence.  While the September 18th, 2013, guidance does not alter the existing FMLA regulations, it goes to great lengths to describe the “significant challenges” employers would face if they needed to administer benefits on the basis of an employee’s state of residence.  It is therefore likely that future DOL guidance will continue the trend of utilizing a “state of celebration” rule over a “state of domicile” rule.  Technical Release No. 2013-04 provides much needed clarification for employers, and since it accords with the recent IRS guidance on how employers should treat benefits of same-sex spouses, it should make benefits administration easier and more uniform for all employers.

You can access the IRS’s Revenue Ruling here: http://www.irs.gov/pub/irs-drop/rr-13-17.pdf

For more information about the DOL’s first interpretation of the Supreme Court’s decision in United States v. Windsor, please contact Jen Cornell (jcornell@nilanjohnson.com), Katie Connolly (kconnolly@nilanjohnson.com), or Sarah Riskin (sriskin@nilanjohnson.com).