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View Diary: Is Boeing poised to deny Washington married couples equal benefits? (71 comments)

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  •  This (5+ / 0-)
    "What we said today is that [these pension benefits] are not currently addressed in the contract."
    is a confirmation.

    Ok, so I read the polls.

    by andgarden on Fri Nov 23, 2012 at 07:55:51 PM PST

    •  What's to address? (5+ / 0-)

      Whether they want to write a contract that is illegal in WA state?

      Supporter: "Senator, you have the vote of every thinking person!" Adlai Stevenson: "That's not enough, madam, we need a majority!"

      by Scott Wooledge on Fri Nov 23, 2012 at 07:59:01 PM PST

      [ Parent ]

      •  Presumably the contract is to be construed (4+ / 0-)

        under Federal labor law. But there must be a gap-filler. Washington law? Illinois Law? Delaware Law? New York law? Those are the most likely.

        Are Illinois, New York, or Delaware prepared to say that same sex marriages performed in Washington state (or elsewhere) are invalid?

        Boeing needs to back off completely. Now.

        Ok, so I read the polls.

        by andgarden on Fri Nov 23, 2012 at 08:02:26 PM PST

        [ Parent ]

        •  ERISA (1+ / 0-)
          Recommended by:
          grover

          generally preempts state law regarding retirement plans, so there is likely no gap filling needed.

          "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

          by Old Left Good Left on Fri Nov 23, 2012 at 08:37:21 PM PST

          [ Parent ]

          •  Is Washington State's marriage law (3+ / 0-)
            Recommended by:
            Scott Wooledge, chipoliwog, sfbob

            preempted by DOMA via ERISA?

            Because really, that's what you will have to argue.

            I welcome this fight, because your position is ridiculous on its face. You assign meaning to DOMA that even its backers never gave it.

            Ok, so I read the polls.

            by andgarden on Fri Nov 23, 2012 at 08:45:36 PM PST

            [ Parent ]

            •  No (2+ / 0-)
              Recommended by:
              OIL GUY, grover

              ERISA preempts state law and DOMA provides a definition of marriage that precludes recognition of same-sex marriages for federal purposes.  That presumably is Boeing's argument.

              It's not my position;  I am merely trying to inform you about something that you are apparently wholly ignorant of.

              "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

              by Old Left Good Left on Fri Nov 23, 2012 at 08:56:26 PM PST

              [ Parent ]

              •  Ok, I'm going to take the unusual step (1+ / 0-)
                Recommended by:
                sfbob

                of backtracking. It might actually be that ERISA's preemption is so comprehensive as to do what you say it does:

                Second, respondents emphasize that the Washington statute involves both family law and probate law, areas of traditional state regulation. There is indeed a presumption against pre-emption in areas of traditional state regulation such as family law. See, e.g., Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979). But that presumption can be overcome where, as here, Congress has made clear its desire for pre-emption. Accordingly, we have not hesitated to find state family law pre-empted when it conflicts with ERISA or relates to ERISA plans. See, e.g., Boggs v. Boggs, 520 U.S. 833 (1997) (holding that ERISA pre-empts a state community property law permitting the testamentary transfer of an interest in a spouse’s pension plan benefits).

                    Finally, respondents argue that if ERISA pre-empts this statute, then it also must pre-empt the various state statutes providing that a murdering heir is not entitled to receive property as a result of the killing. See, e.g., Cal. Prob. Code Ann. §§250—259 (West 1991 and Supp. 2000); 755 Ill. Comp. Stat., ch. 755, §5/2—6 (1999). In the ERISA context, these “slayer” statutes could revoke the beneficiary status of someone who murdered a plan participant. Those statutes are not before us, so we do not decide the issue. We note, however, that the principle underlying the statutes–which have been adopted by nearly every State–is well established in the law and has a long historical pedigree predating ERISA. See, e.g., Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188 (1889). And because the statutes are more or less uniform nationwide, their interference with the aims of ERISA is at least debatable.

                So, does ERISA preempt the marriage law of state insofar as they do not have "long historical pedigree predating ERISA?" Frankly, I doubt it, and more importantly, I don't think Boeing will want to argue it, but it's at least possible that it does.

                So my fallback is this: to the extent ERISA attempts to do that, it unconstitutionally discriminates against gays and lesbians who are married (and also interferes with their fundamental right to marry).

                Ok, so I read the polls.

                by andgarden on Fri Nov 23, 2012 at 09:13:38 PM PST

                [ Parent ]

            •  Actually (4+ / 0-)
              Recommended by:
              Scott Wooledge, ColoTim, sfbob, PeterHug

              I suppose there could be an interesting court case out of this if an employer wanted to not recognize WA marriages for benefit purposes and was sued by the WA equivalent of the EEOC. Clearly DOMA and ERISA don't prevent employers from making any provisions they want to provide for same-sex married couples or same-sex domestic couples.

              Could they be construed to pre-empt state non-discrimination laws in this regard? I'll leave that to the Con Law experts to sort out.

              •  It might be that they do, terrifyingly (0+ / 0-)

                I don't think a court will likely go for that, but. . .

                Ok, so I read the polls.

                by andgarden on Fri Nov 23, 2012 at 09:20:22 PM PST

                [ Parent ]

              •  At this point (3+ / 0-)
                Recommended by:
                ColoTim, sfbob, PeterHug

                if the benefit were an ERISA-covered benefit, the courts might well hold that Washington's non-discrimination law is pre-empted by ERISA.  However, a well-crafted complaint would probably also allege that DOMA is unconstitutional, and thus attempt to clear the way to apply Washington's definition of marriage to ERISA plans.

                "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                by Old Left Good Left on Fri Nov 23, 2012 at 09:26:08 PM PST

                [ Parent ]

                •  Which might case aneurisms in the social (2+ / 0-)
                  Recommended by:
                  jayden, sfbob

                  conservatives, as the fiscal consefvstives just try to save some money:  that whole bad cases make bad law thing.

                  Situations like this are incredibly unfair to the people involved. But the corporations and political players just paint themselves into even tighter corners as time goes on. It really sucks being on the wrong side of history.

                  My guess is that some very influential convervatives will tap the Boeing folks on the shoulder and tell them it's not worth putting all of DOMA in play for perhaps a few employees here and there in WA.

                  © grover


                  So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

                  by grover on Sat Nov 24, 2012 at 02:18:15 AM PST

                  [ Parent ]

            •  By the way (0+ / 0-)

              I think that preempting state marriage laws for federal purposes was exactly what the DOMA backers had in mind, just as it prevents the IRS from recognizing same-sex marriages.

              "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

              by Old Left Good Left on Fri Nov 23, 2012 at 09:09:24 PM PST

              [ Parent ]

              •  Under your reading of section 3(a) of DOMA (2+ / 0-)
                Recommended by:
                Scott Wooledge, sfbob

                it seems possible that an ERISA covered agreement could possibly not even include same sex couples in its definition of marriage.

                So to what extent does DOMA, by way of ERISA, create mandatory terms in a private contract like this?

                Seems like an interesting law review article.

                Ok, so I read the polls.

                by andgarden on Fri Nov 23, 2012 at 09:19:25 PM PST

                [ Parent ]

                •  It doesn't (2+ / 0-)
                  Recommended by:
                  grover, sfbob

                  Boeing and the union can probably agree to the coverage--in fact, I think Boeing already provides benefits to same-sex spouses of salaried employees--and I don't think DOMA reaches it.

                  "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                  by Old Left Good Left on Fri Nov 23, 2012 at 09:32:34 PM PST

                  [ Parent ]

                  •  Hypo: (1+ / 0-)
                    Recommended by:
                    sfbob

                    The contract explicitly imports Washington State's marriage law. What if a same sex surviving spouse bring suit in Federal court? The iron-clad strength of ERISA's preemption clause would seem to potentially cause a problem.

                    This is above my pay grade (and beyond the research I've done), but I think it's a pretty good illustration of why DOMA is so outrageous.

                    Ok, so I read the polls.

                    by andgarden on Fri Nov 23, 2012 at 09:40:30 PM PST

                    [ Parent ]

                  •  Boeing allows employess (1+ / 0-)
                    Recommended by:
                    sfbob

                    to register their same-spouses for COBRA coverage.

                    I've been searching around and not seeing it explicitly that they cover partners, but I'm guessing they do, as they let them enroll in employee assistance programs and health programs, and HRC gave them awards.

                    Overall, seem like a good track record on diversity.

                    Which is not to say I think it's any better that they're just nickel and diming the LGBT community for the sake of money and not animus. The end result is the same: discriminatory policy and compensation.

                    Supporter: "Senator, you have the vote of every thinking person!" Adlai Stevenson: "That's not enough, madam, we need a majority!"

                    by Scott Wooledge on Fri Nov 23, 2012 at 10:05:09 PM PST

                    [ Parent ]

                    •  IANAL but I rather think that it would (1+ / 0-)
                      Recommended by:
                      Scott Wooledge

                      be possible to craft a union contract that had the effect of preserving benefits for survivors of a same-sex marriage without ever getting into a conflict with ERISA or DOMA.  Perhaps one could just have the company commit to paying the equivalent of whatever would have been to amount, out of another account.

                      I rather expect that the money involved isn't likely to be significant to Boeing in the larger scheme of things - this may be routine gamesmanship in a contract negotiation, it could be that the Boeing lawyers honestly think that they have no choice given the precise wording of the laws involve, or it could be Boeing being a jerk.  I think that which of these is the case will become apparent over time.

                      And I will personally commit, that until this is resolved in favor of equality, I will NOT buy even a single Boeing jet!

                      :)

                      •  We do see end-run arounds (1+ / 0-)
                        Recommended by:
                        PeterHug

                        on other issues. DOMA prevents same-sex couples from filing joint tax returns and from paying for benefits like health-insurance out of pre-tax wages, creating economic disparities between same-sex couples and equally situated opposite sex coupled employees.

                        Companies like Google, Barclays and others have fixed that by paying their same-sex couples the difference, so their take home pay is the same.

                        It seems to me, if a company has the desire to create an equitable work environment they are able, their hands are not tied, particularly one of Boeing's means.

                        Supporter: "Senator, you have the vote of every thinking person!" Adlai Stevenson: "That's not enough, madam, we need a majority!"

                        by Scott Wooledge on Sat Nov 24, 2012 at 10:44:13 AM PST

                        [ Parent ]

    •  The followup question is (1+ / 0-)
      Recommended by:
      Dave in Northridge

      whether it is Boeing's position that interracial marriages are "addressed" in the contract.

      Ok, so I read the polls.

      by andgarden on Fri Nov 23, 2012 at 07:59:37 PM PST

      [ Parent ]

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