MASSACHUSETTS

EMPLOYER COMPLIANCE PROGRAM

Goal: The goal of the Massachusetts Department of Revenue Child Support Enforcement Division's (DOR) Employer Compliance Program is to encourage employers to comply with the requirements of income withholding orders and to enforce those requirements when necessary.

Description: DOR's Employer Compliance Program is designed to address three types of compliance problems encountered with income withholding orders:

• Employers who withhold the child support but do not remit to DOR;
• Employers who do not withhold child support at all or who withhold the incorrect amount; and
• Employers who withhold child support but do not remit the payments timely.

Massachusetts law requires employers to withhold child support from each paycheck and to remit the support to DOR within three business days of the obligor's pay date. In accordance with Federal requirements, our State laws also create an independent legal obligation on the employer for the amount of the child support due, so that if an employer does not comply with an income withholding order, the employer can be held personally liable for the unpaid support and charged a penalty.

When a possible employer compliance issue is brought to DOR's attention, the case is referred to our Employer Services Center where staff specialize in assisting employers with day-to-day questions about income withholding and other employer responsibilities. The Employer Services representative first tries to contact the employer by phone or by a letter requesting a return call. If the employer does not respond, or if the problem persists after the initial contact, the Employer Services staff send the employer a "3-day letter." This letter provides written notice reminding the employer of its obligations to withhold child support and remit it to DOR within 3 days and informing the employer of the penalties and enforcement measures we can take if the matter is not resolved.

Many employers will make a greater effort to comply when they receive the 3-day letter. If after 30 days the problem is still unresolved, the case is referred to the Employer Compliance Program attorney. The attorney makes a final effort to encourage the employer to voluntarily resolve the problem. If that effort fails, the attorney calculates the amount of unpaid support the employer is liable, and the penalty. Pursuant to statute, the penalty is owed to the State - not the family - and equals the amount of the unpaid support or $500, whichever is greater. The combined amount of unpaid support and penalty is assessed against the employer and the attorney makes written demand for payment within 30 days. The assessment letter also gives notice of the grounds for contesting the assessment and how to request an administrative hearing. If the employer does not respond or pay the assessment within the 30 days, the attorney initiates certain administrative enforcement measures against the employer to collect the assessment. Typically, a levy executed against the employer's bank account is sufficient to collect the unpaid support and penalty. In addition, DOR can suspend any professional or business licenses and place liens on any property held by the employer. These enforcement activities are initiated on a case-by-case basis. If the administrative enforcement is unlikely to yield any collections, DOR may opt to bring the employer before the family court. In court, the notice of assessment by DOR satisfies a prima facie case of civil contempt. As with any contempt proceeding, the full range of remedies available to the court, including an additional assessment of attorney's fees, may be imposed against a non-compliant employer.

While collection of unpaid support is our strongest motivation, DOR recognizes that the timely collection of future support is sometimes more valuable than the imposition of penalties on employers. Therefore, DOR retains the right to waive some or all of the penalties assessed against an employer based on the facts and circumstances of the individual case. When an employer has remitted the unpaid support in full, DOR may agree to waive a portion of the penalties over time, provided that employer remains in strict compliance with the terms of the income withholding order. Often this compliance is combined with a requirement to begin remitting all child support electronically.

Results: From September 2006 to April 2007, DOR has handled 20 employer compliance cases that reached the attorney involvement stage. Seven employers began complying without the need for an assessment. Assessments against the remaining thirteen employers total $75,000, including both unpaid support of over $28,000 and penalties of over $46,000. Although some of these cases are still pending as of April 2007, DOR has already collected over $25,000 in previously unpaid support for families, representing over five years' worth of combined child support payments. The success of the program is self-evident: DOR has achieved a 90 percent collection rate for unpaid support in cases referred to the employer compliance program. Here are two examples:

• In one case, the obligor's employer was not withholding pursuant to the income withholding order issued by DOR and the obligor was not making his payments either. Despite repeated efforts to speak with the company's owner, our calls were not returned and the 3-day letters were not heeded. We eventually assessed the employer $4,500 in unpaid support due to its failure to withhold, and penalized the employer in an equal amount. The employer still did not pay, so DOR levied the employer's bank account for the full $9,000. Only then did the employer respond, claiming the obligor had told him all along "it was being taken care of" and that he didn't think he had to withhold. DOR reached a settlement agreement with the employer to immediately release to DOR the $4,500 in unpaid support, and to put the employer on probation while the penalty was held in abeyance. If the employer complied with the terms of the probation for the next year, the penalty would be waived. The lump sum paid to the family represented over 7 months of child support payments. Unfortunately, the employer did not comply with the terms of probation. DOR successfully levied the employer's bank account a second time for the penalties.
• In another case, the employer withheld child support from the obligor for over a year but was not remitting in full. The obligor had limited English proficiency and was working under a green card. After contacting us about the remittances, he provided copies of his pay stubs confirming the cumulative amount of child support deducted from his pay. When we discovered the amounts on the pay stubs did not match the remittances from the employer, we attempted to contact the employer about the missing payments. The employer did not return our calls, so an assessment totaling over $10,000 was issued for the withheld-but-not-remitted support and a penalty. The employer still did not pay the assessment, and a levy was issued against the employer's bank account. In less than eight weeks from the time the case was referred to the employer compliance attorney, we received the full assessment. DOR was able to distribute 46 weeks' worth of child support to the family and retained the penalty for the Commonwealth.

Location: The Employer Compliance Program operates statewide.

Funding: Regular IV-D funds are used.

Replication Advice: This program is based on statute. For further information about this program, refer to Massachusetts General Laws chapter 119A, in full, and especially §12. DOR also provides substantial information for employers on our website at http://www.mass.gov/cse.

Contact:

Peter Coulombe

Counsel

Phone: 617-626-4157

Email: coulombep@dor.state.ma.us