New West Virginia Legislation Requires Additional Obligations Relating to Income Withholding Orders

Section 48-14-401 et seq. of the West Virginia Code provides for income withholding orders in connection with child support obligations. An income withholding order is a court or administrative order mandating that an employer deduct a specified amount from parent-obligor’s income every pay period to send to the Bureau for Child Support Enforcement (“Bureau”) to satisfy the child support obligation. Aside from being responsible for sending the amount to the Bureau every pay period, employers must notify the Bureau if an employee-obligor’s employment is terminated or the employee-obligor ceases to receive income, provide requested information to the Bureau, comply with all written requests from the Bureau regarding employee-obligor’s terms of employment, report new hires and re-hires, and advise the Bureau when an employee-obligor has been called to active military duty.

On June 12, 2011, new legislation passed by the West Virginia Legislature affecting employers’ duties and obligations goes into effect. This new legislation requires that all employers notify the Bureau two weeks prior to issuing employee bonuses of $100.00 or more to any employee for whom an income withholding order is in effect. The employer must inform the Bureau of the employee’s name, last four digits of his/her social security number, and the amount of the bonus. Additionally, the new legislation imposes an additional requirement for sending payments to the Bureau requiring that employers with more than fifty employees use electronic funds transfer to transmit support payments electronically to the Bureau.

Compliance with this new legislation is important because of the strict penalties associated with failure to comply with an income withholding order. Particularly, employers are liable to an obligee (the individual or the State of West Virginia) for any amount for which it failed to withhold from income upon receiving a proper notice of withholding. Additionally, employers are guilty of a misdemeanor and will be fined not more than $100.00 if the employer knowingly or willfully conceals the fact that it is paying income to an employee-obligor with the intent to avoid withholding from the employee-obligor’s income. Finally, an employer is guilty of a misdemeanor and will be fined between $500.00 - $1,000.00 if it discharges an employee-obligor, refuses to employ an employee-obligor, or takes disciplinary action against an employee-obligor because of the existence of the withholding and additional obligations required by the Act