When you have a child support order, most people elect to have that support taken directly from the person’s paycheck. You get a Uniform Order for Support and then serve a Notice of Withholding on the employer. But what if the employer will not pay it? The law allows you to go after the employer in that instance, and the employer can be assessed a penalty of $100.00 a day for their failure to withhold. Until recently, there was no cap to that penalty. The $100 a day penalty could accrue and would not stop accruing until the amount was withheld.
Recently, this changed. In the case of Jessica Murray v. Jeffrey Murray, the employer, McHenry County Conservation District, was to withhold child support from Jeffrey’s paycheck. They failed to do that for five pay periods. Jessica sought the unpaid support of $1,086.90, plus the penalty amount due to her under the Withholding Act. The version of section 35(a) that was in effect when Jessica filed her claim states in
relevant part as follows:
“It shall be the duty of any payor who has been served with an income withholding notice
to deduct and pay over income as provided in this Section. The payor shall deduct the
amount designated in the income withholding notice, *** beginning no later than the next
payment of income which is payable or creditable to the obligor that occurs 14 days
following the date the income withholding notice was mailed ***. *** The payor shall
pay the amount withheld to the State Disbursement Unit within 7 business days after the
date the amount would (but for the duty to withhold income) have been paid or credited
to the obligor. If the payor knowingly fails to withhold the amount designated in the
income withholding notice or to pay any amount withheld to the State Disbursement Unit
within 7 business days after the date the amount would have been paid or credited to the
obligor, then the payor shall pay a penalty of $100 for each day that the amount
designated in the income withholding notice (whether or not withheld by the payor) is not
paid to the State Disbursement Unit after the period of 7 business days has expired. The
failure of a payor, on more than one occasion, to pay amounts withheld to the State
Disbursement Unit within 7 business days after the date the amount would have been
paid or credited to the obligor creates a presumption that the payor knowingly failed to
pay over the amounts. This penalty may be collected in a civil action which may be
brought against the payor in favor of the obligee or public office. For purposes of
this Act, a withheld amount shall be considered paid by a payor on the date it is mailed
by the payor.” 750 ILCS 28/35(a) (West 2010).
The $100-per-day penalty is assessed for each violation of the Withholding Act. “ ‘A
separate violation occurs each time an employer knowingly fails to remit an amount that it has
withheld from an employee’s paycheck.’ ” In re Marriage of Miller, 227 Ill. 2d 185, 194 (2007)
(quoting Grams v. Autozone, Inc., 319 Ill. App. 3d 567, 571 (2001)).
The trial court applied the new law however, and capped the recovery to $50,000. She appealed.
On appeal, the reviewing court determined that the Conservation District had immunity from the $100 a day penalty that might otherwise apply to other employers. The reviewing court reversed Jessica’s award of $50,000 and she was only able to recover $1,086.90.