|Can an Employer Be Fined for Not Witholding Child Support from an Employee's Pay?||
Last updated: June 2009
Note:The Illinois Marriage and Dissolution Act and Paternity Act changed on January 1, 2016. The most up-to-date information can be found in the following articles: Parentage (formerly Paternity), Divorce, Allocation of Parental Responsibilities (formerly Custody), Parenting Time (formerly Visitation), and Child Support.
The following questions were submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette. This article was published on September 10, 2008.
Q: A recent column said an employer got fined $1,000,000 for not withholding child support from an employee’s pay. Why is the employer liable for making the child support payments? Isn’t it the employee’s responsibility, since they’re the person who actually owe the child support? And how can a fine like that be justified?
A: The employer’s liable because the law says so. Once an employer gets a notice to withhold income for child support, the law requires them to actually withhold that income, and spanks them hard if they don’t.
The law recognizes that child support is a fundamental need for the parent and kids who get it, and a fundamental duty for the parent who pays it. And just as we don’t really trust people to make their own voluntary payments for taxes and Social Security, the law in question doesn’t trust them to make voluntary child support payments. Just like with taxes and Social Security, the law shifts the responsibility for making child support payments onto employers.
The law that does that is the Illinois Income Withholding for Support Act. It went into effect in 1999, and cleared up some confusion by organizing into one place various parts that had previously been scattered about in different places. It’s the result of a national effort to create standard forms and procedures to help collect child support.
As the previous column explained, the law lets anyone who’s supposed to receive child support serve a standard and relatively simple Notice to Withhold Income for Support on the employer of whoever’s supposed to pay that support. The Notice summarizes the terms of a child support order that a judge has already entered, and instructs the employer to begin withholding the specified amount of support from the employee’s pay.
The employer’s supposed to send that withheld support to the State Disbursement Unit. SDU then forwards it on to the parent entitled to it. As the designated middleman in the child support process, SDU also keeps the official records of who’s paying, and how much.
The law calls the employer the “payor,” since they pay wages to the person who’s supposed to pay support (the “obligor”). The section called “Duties of Payor” says the employer “shall deduct the amount designated in the income withholding notice” within 14 days of getting the notice, and send it to SDU within 7 business days of the employee’s pay date.
If an employer “knowingly fails” to withhold for child support, or transmit it to SDU, then the law says they “shall pay a penalty of $100 for each day that the amount designated in the income withholding notice . . . is not paid to [SDU] after the period of 7 business days has expired.”
Each new payday creates a new, separate $100 a day penalty for an employer who knowingly fails to withhold support. Those multiple layers of $100/day penalties explains how one employer who withheld child support, but didn’t send it to SDU for 2 ½ years, accumulated 11,721 separate $100 penalties. Because that employer had ignored repeated warnings to do it right, the Illinois Supreme Court said that a $1,172,100 penalty was OK—even if the unpaid support was only $12,382.
That’s an extreme case, involving a pretty stubborn employer, who happened to be the father of the person obligated to pay support. But it sends a clear message: employers disregard income withholding notices at their peril.
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