Employer not liable for Penalties after failing to Withhold Wages for Child Support Because Employee Made Some Payments Directly to his Ex-Wife

Dec 22 2018      On Behalf of  David M. Duree & Associates, P.C.      Uncategorized

The Illinois Income Withholding for Support Act imposes a penalty of $100 per day, in addition to liability for the amounts not withheld, on Employers which “knowingly” fail to withhold a percentage of wages to meet child support obligations of their employees. The Appellate Court recently refused to impose the penalty (but not liability for amounts not withheld) on an employer that failed to withhold, after notice of the child support obligations, because the employee had made some payments directly to his ex-wife during the same period. The employer did not know about the direct payments, but nevertheless failed to withhold wages. The Court interpreted “knowingly” strictly, concluding the employer did not “knowingly” fail to withhold wages because it did not know about the direct payments. The concurring opinion relied on a section of the Act that required the ex-wife to keep the authorities informed of any payments received—something she failed to do. In Re: Schmidgall (Ill. App. 3d dist., Sept 11, 2018)