Dragging employers into child support

Nation's Business, Oct, 1991 by Jean Sensel, Diane MacDonald

The statistics are alarming: Half the children born today will live in a single-parent family (usually with the mother) before reaching age 18. Of children now entitled to support by court order, 25 percent receive only part of it; another 25 percent receive none. On average, children's standard of living declines more than two-thirds in the first year following a divorce, often casting them onto the public welfare system.

Congress passed the Family Support Act in 1988. Its object was to force parents to pay the child support they owed, to improve conditions for the children, and to relieve the welfare burden. The weapon of choice is the automatic wage deduction by employers.

In effect, the law makes employers responsible for their employees' child-support obligations. The penalties for noncompliance are severe--in some cases, the employer may become liable for the full amount of the claim against an employee plus interest, costs, and penalties.

The Family Support Act requires each state to establish standard award guidelines and make child-support payment as certain as tax payment through automatic wage deduction. All states must employ withholding for all new or revised orders processed through the state's office of support enforcement. By 1994, automatic wage withholding must be used for all support orders. Currently, in all states an employer may receive a wage garnishment order for child support in arrears.

The interplay of federal and state laws and the calculations the employer is required to make are complex. And the highly charged emotional issues of divorce and family can intrude into the normal operation of the workplace.

In one case, an employer in Seattle was startled by an anguished cry from a usually tough, competent employee: "My husband's ex-wife says she's garnishing half my wages! She can't do that, can she?" This employee--call her Janie--had never before raised personal subjects at work or displayed vulnerability.

Generally, a spouse's wages cannot be attached for the other spouse's child-support obligation. Buth it happens, and Janie's employer is legally obligated to withhold by the terms of an order, even when the order is in error, as Janie claimed.

Janie's employer was sympathetic and advised her to see an attorney; Janie said she could not afford one.

Before long, stress from the support issue affected her job performance. Janie became short-tempered and curt with customers, and her absenteeism sky-rocketed. Janie's employer discharged her the fourth time she failed to show for work without calling in. The discharge was for poor performance, but it was clearly related to anxiety over the child-support problem.

Federal law prohibits discharge for child-support withholding, garnishment, or threatened garnishment, so a sympathetic court may construe Janie's severance as unlawful. If found guilty, her employer could face his state's penalty of $2,500 in fines and liability for double lost wages and other damages.

Suppose an employer wants to be sympathetic? In another case, Dan, an employer at a construction company in Tacoma, Wash., was a friend to his employee Jim, and he thought Jim was treated unfairly in the divorce settlement. Dan thought he'd help Jim by ignoring the child-support garnishment. First, he claimed that he did not receive it, and then he said he "misread" the language of a second order. The support amount was greater than 50 percent of Jim's disposable income, so Dan deducted nothing at all instead of deducting up to the 50 percent limit. Refusing to withhold did not eliminate Jim's support obligation or Dan's responsibility for these months.

In the end, Dan had to put his legal obligations before friendship when the state pointed out that his noncompliance made him liable for the $8,000 in back support that had accumulated since the order was mailed to him--plus interest, collection costs, and penalties. Dan faced court action, with court costs and attorney fees added to his other liabiity, if he had not comply immediately.

The lessons are: Do not ignore an order to withhold child support, and do not ignore your employee's stress. The only way to avoid legal and emotional entanglements is to have a plan of action. (See the bos on Page 36.)

The following are general provisions of law that employers need to know. Check with your local child-support enforcement agency or attorney for specific situations.

Restrictions on hiring: Federal law prohibits job discrimination based on automatic child-support withholding. Employers may open themselves to state and federal penalties if an applicant claims discrimination based on pre-employment inquiries about child-support obligations. Employers should document their reasons for selecting one job applicant over another. An increase in payroll costs due to child-supporting withholding is not a valid reason for rejecting an applicant.

Restriction on firing: Although some states allow discipline or discharge for multiple garnishments, child-support withholding does not count. Penalties for violation range from the high of $5,000 imposed on an employer in Maine to a provision for an employee to sue for double lost wages in Minnesota.