UPS changes course and decides to grant benefits to civil union partners after pressure from Governor Corzine. One down, several hundred more companies to go. UPS press release:
UPS (NYSE:UPS) today announced it would offer health care benefits to all civil union partners of hourly employees in New Jersey who are covered under collectively bargained union plans. Management and administrative employees in the state already have such benefits.
"Based on an initial legal review when New Jersey's law was enacted, it did not appear that a 'civil union' and 'marriage' were equivalent," noted Allen Hill, UPS's senior vice president for human resources. "Over the past week, however, we have received clear guidance that at least in New Jersey, the state truly views civil union partners as married. We've heard that loud and clear from state officials and we're happy to make this change."
"We commend UPS for taking this step," said Daryl Herrschaft, director of the Workplace Project at the Washington, D.C.-based Human Rights Campaign. "We've known all along that UPS wanted to do the right thing. It says a lot about this company's character that it never stopped looking for a way to help these New Jersey employees in an uncertain legal environment."
The extension of benefits to civil union partners of hourly employees in New Jersey will affect approximately 8,700 workers, although it's impossible to know how many of those employees have joined in civil unions. About 5,400 non-union UPS workers in New Jersey already are eligible.
Governor Corzine today wrote a letter to UPS Chairman and CEO Michael Eskew urging the company to reconsider it's denial of benefits to civil union couples in New Jersey. Corzine argues that New Jersey law considers civil union couples as spouses, even though we can't actually call them that.
So, civil union couples are exactly like married couples and partners are just like spouses, but we can't actually use those words because...who the fuck knows? The need for this letter is further evidence that this law simply doesn't work. Eliot Spitzer took a lead on marriage equality and the New York Assembly subsequently passed marriage equality legislation. Corzine is armed with evidence that this law is a failure. He should step up and lead the state out of this mess and bring true equality for all our residents.
Below is the governor's letter:
Dear Mr. Eskew:
On February 19, 2007, New Jersey's civil union law took effect. The purpose of the statute is to ensure the equal treatment of committed, same-sex couples in New Jersey by providing those couples who enter into a civil union with all of the benefits, protections and obligations of marriage. An important component of the equality envisioned by the law is the provision of health and other benefits to civil union partners of employees on the same terms as are provided to employee spouses. To accomplish this goal, the New Jersey law mandates that employers operating in the State provide benefits on equal terms to civil union partners and spouses.
It has recently come to my attention that employers who self-fund employee benefits, such your company -- that is, companies who do not provide employee benefits through a contract of insurance -- may assert that federal law, namely the Employee Retirement Income Security Act ("ERISA") and the Defense of Marriage Act ("DOMA"), prevent enforcement against them of the mandatory provisions of New Jersey's civil union statute with respect to employee benefits for civil union partners. While these statutes arguably provide that State anti-discrimination laws relating to employee benefits cannot be enforced against self-funded employers through legal action, nothing in federal law prevents self-funded employers from providing the civil union partners of employees with benefits on terms equal to those provided to spouses. It is my understanding that UPS has demonstrated this fact by going beyond the minimum requirements of federal law and providing benefits to the civil union partners of non-unionized employees. I applaud you for this decision, which represents a significant step toward eliminating inequality for committed, same-sex couples in New Jersey.
Equal benefits have not, however, been provided by UPS to the civil union partners of employees represented by collective bargaining agents. It is my understanding that a clause in the applicable collective bargaining agreement(s) providing benefits to employee "spouses" has been interpreted by UPS as not applying to civil union partners from New Jersey. This interpretation of the contract(s) leaves a subset of your employees, including employees who work in New Jersey, without benefits for their civil union partners, creating inequity at the workplace and furthering the inequitable treatment of committed, same-sex couples that the New Jersey law is intended to eradicate.
To the extent that the interpretation of "spouse" in the collective bargaining agreement(s) is based on the status of civil union partners under New Jersey law, I call to your attention a provision of the New Jersey civil union statute, N.J.S.A. 37:1-33, that provides that "[w]henever in any law, rule, regulation, judicial or administrative proceeding or otherwise, reference is made to . . . `spouse' . . . or another word which in a specific context denotes a marital or spousal relationship, the same shall include a civil union pursuant to the provisions of this act." The quoted provision makes plain that New Jersey law intends that civil union partners be viewed as spouses under all facets of New Jersey law and that a reference to "spouse" in a legal context, including in a contract, embraces civil union partners. This interpretation of "spouse" as it appears in the collective bargaining agreement(s) applicable to UPS employees who are in a New Jersey civil union would be consistent with New Jersey law and the intended purpose of the civil union statute. I urge you to reconsider your company's reading of its collective bargaining agreement(s) on this point to facilitate implementation of the goals of the civil union law.
Apart from any purely legal considerations, the provision of employee benefits to civil union partners on the same terms as spouses would be more than a symbolic gesture of your company's commitment to eliminating discrimination. Spousal benefits are a key element of the financial and physical well-being of working couples and their children. The provision of those benefits can, in some cases, mean the difference between the security of having health insurance, the financial strain of acquiring coverage at significant expense, or the risk of financial ruin by remaining uninsured. Surely, as a company with a longstanding commitment to its employees and the community, UPS would not want to make its employees and their families face these difficult choices based on the subtleties of the interaction of federal and State law, the happenstance that an employee is in a collective bargaining unit rather than an unrepresented position, and an unnecessarily restrictive interpretation of a phrase in a collective bargaining agreement(s).
Thank you in advance for your consideration of this matter.
A few days ago we commented on the Star Ledger's report on UPS denying benefits to same-sex civil union partners in New Jersey, despite granting those same benefits to married gay couples in Massachusetts. This morning I received a response from a UPS spokeswoman, which adds some clarity to the issue:
I saw your blog post on UPS. What the Star Ledger doesn't explain is that UPS doesn't legally have the right to give same sex benefits to Ms. Brazier because she is part of the Teamsters and any changes to benefits have to be done as part of the collective bargain process.
The contact expires in 2008. Absent a law that specifically categorizes same sex partners as married spouses such as in Mass., UPS cannot unilaterally change a union contract to offer same sex benefits. We have already brought up this issue to the Teamsters for consideration.
As a matter of corporate policy, UPS currently offers same sex benefits to all non-union employees -- management as well as administrative workers. This includes all such employees in New Jersey, even though the state has failed to recognize gay partners as married spouses. Beyond health care, UPS also offers benefits such as medical leave, pension rights, funeral leave, relocation and transfer benefits. We recently added same-sex benefits as part of a new contract with UPS pilots too. The situation regarding Ms. Brazier and her partner is just as disappointing to UPS as it is to them. Our corporate policy is very clear. But for unionized employees, we can only address the issue through the union at contract renewal time.
Lynnette McIntire
UPS
If this is accurate, then contrary to my post, UPS is not choosing to discriminate. They seem to want to grant benefits to same-sex couples, but are being blocked from doing so because of a contract and state law.
Contrary to today's Courier News editorial titled N.J. did its part on gay unions, this doesn't appear to be the fault of UPS. By going out of their way to make up a new name for their relationships, the state failed to recognize gay couples as equal to everyone else, and that had real world consequences. The state took the easy way out when it had a chance to lead. That's not praiseworthy.
When the State Supreme Court ruled last fall that gay couples deserve the same rights as everyone else in the state, the legislature's awkward response signaled something different. Instead of changing a couple of words in the statues, the legislature created an entirely new class of relationships, called civil unions, and needed 60 pages to detail how they are just the same as marriages. On paper anyway.
The results were so predictable and every week we learn more about the utter failure of this law. The Star Ledger reports that UPS is the latest company to interpret the civil unions law as a green light to discriminate against employee Gabriael "Nickie" Brazier and her partner Heather Aurand:
United Parcel Service's decision to deny coverage to a Toms River couple boils down to a single word: New Jersey law does not call them "spouses." [...]
In its letter denying coverage, UPS said it does provide health benefits to its employees' spouses, including spouses of the same sex who are married in Massachusetts. But it said New Jersey's decision to recognize same-sex relationships as civil unions rather than marriages tied its hands.
Despite being governed by federal law, UPS chose to extended health care coverage to married couples in Massachusetts. That is the power of words. No good corporate citizen wants to be seen as discriminating against their employees. But there's no such pressure to do the right thing in New Jersey, as David Buckel, a lawyer with Lambda Legal, explains:
"The Legislature said: You folks aren't worthy of marriage. That has an impact. If the New Jersey Legislature would just take back the invitation to discriminate, UPS would do the right thing."
And that's not just a gay rights lawyer's spin. The letter from the UPS explicitly states the same:
In its letter, UPS said the New Jersey Legislature, in enacting the state's civil union law, "did not go as far as Massachusetts and afford same-sex couples the ability to marry. Had the New Jersey Legislature done that, you could have added Ms. Aurand as a spouse under the plan."
The letter concluded that "New Jersey law does not treat civil unions the same as marriages."
Through their actions, the legislature - naively or intentionally - created an innately unequal subclass of residents and a loophole you could drive a UPS truck through. It's time to close the UPS truck loophole.
