Monthly Archives: October 2013


By: Alan M. Levy

On September 18, 2013 the U.S. Department of Labor (“DOL”) issued Technical Release 2013-04 to address ERISA rights for same-sex spouses after the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), invalidated parts of the federal Defense of Marriage Act. Largely consistent with the equivalent discussion from the Internal Revenue Service, Rev. Rul. 2013-17, DOL has stated that it will require that legally married same-sex spouses be treated under ERISA benefit plans in the same manner it has always applied for those in opposite-sex marriages.

The test for being “legally married” is based on the law in the state where the marriage ceremony took place, so, for example, a same-sex couple married in Iowa, New York, or Minnesota is considered legally married for purposes of federal law even if they subsequently live in a state (like Wisconsin) which does not recognize that marriage. For this reason, Wisconsin employers must be alert to the federal rules if any of their employees seek these benefits.

The two same-sex spouses then have all the ERISA rights of an opposite-sex married couple. In ERISA-governed retirement plans, each can be the “surviving spouse” of the other, and ERISA “joint and survivor” spouse benefits must apply to both. When the retirement plan rules require notice to or consent from a spouse (as when a participant designates a beneficiary or selects a joint and survivor retirement benefit), the same-sex spouse has the same rights to be notified and the same power to consent (or not) as the spouse in an opposite-sex marriage. Similarly, a same-sex couple who obtain a legal divorce can utilize a Qualified Domestic Relation Order (“QDRO”) to require that the participant’s same-sex former spouse receives part of the participant’s benefit.

The rules for ERISA welfare plans – including employer-provided health insurance – are somewhat less certain because a welfare plan may exclude a spouse regardless of gender. However, a health plan which only provides employee benefits to a spouse of the opposite sex and excludes a same-sex spouse is an invitation to litigation.

Employers should review their ERISA plan documents and amend those references which would improperly deny spousal benefits to same-sex spouses. Currently, all such references must be updated by December 31, 2013; although there are indications that IRS will extend this deadline, no announcement of that relief has yet been issued.

Should you have any questions about these new requirements and how they are to be enforced, please contact Alan M. Levy, an attorney with Lindner & Marsack who focuses on employee benefits.


By: John E. Murray and Samantha J. Wood

In June 2013, the United States Supreme Court invalidated the federal law defining marriage as the union of one man and one woman. That decision complicates the administration of FMLA leave for multi-state employers and employers in states (like Wisconsin) which have not recognized same-sex marriages. For more information on the impact of this decision, please read the article by Attorneys John E. Murray and Samantha J Wood at:–to-reconsider-benefits-for-same-sex-couples

If you have questions about this material, please contact John E. Murray or Samantha J. Wood by email at or, or any other attorney you have been working with here at Lindner & Marsack, S.C.


By: Alan M. Levy

On October 1, 2013 the Wisconsin Court of Appeals held that Milwaukee County could eliminate the reimbursement of Medicare Part B premiums for employees who had not retired before that modification took effect on April 1, 2011. Reversing the decision below, the Court held that the Supreme Court’s decision in Loth v. City of Milwaukee, which was “at odds” with two earlier Court of Appeals decisions, supported the County’s application of a less generous retiree benefit to those who were still actively employed. Although the Courts of Appeal in Welter v. City of Milwaukee and Rehrauer v. City of Milwaukee, had ruled that a city employee had a vested right immediately upon being hired to the highest level of retiree benefit in effect at any time during his/her active career, Loth held that a benefit due upon retirement for employees who already met age and service requirements did not vest until actual retirement. In turn, that benefit could be reduced for an employee who had achieved the necessary age and service, but not yet retired and become vested. As a result, Milwaukee County could eliminate the premium reimbursement benefit for “retired members of the County Retirement System” who were still active employees on the effective date of the new rule.

This rejection of Welter and Rehrauer suggests that retiree benefits for public employees whose benefits have not yet vested are open to modification by the municipal employer, an important option in this time of severe limits on revenue and ever increasing retirement costs. The majority opinion in the Milwaukee County case also said that collective bargaining agreements which had provided the same retiree benefits as in the County’s ordinances, did not bar these modifications if those agreements had expired before the amendment was applied to the bargaining unit.

There are a number of cases pending at all levels of the Wisconsin courts which involve reductions in retiree benefits. This decision will undoubtedly be an important precedent favoring the employer in similar litigation. The case is Wisconsin Federation of Nurses and Health Professionals, Local 5001, AFT, AFL-CIO, et al. v. Milwaukee County; Court of Appeals Case No. 2012AP002490; Milwaukee County Circuit Court Case No. 2012CV001528.

Lindner & Marsack attorney Alan Levy represented Milwaukee County in Wisconsin Federation of Nurses and the City of Milwaukee in Loth. Please contact him directly if you have any questions about these matters.