ISSUE:
The Federal Longshore and Harbor Workers' Compensation Act (the Act), which essentially is a federal workers' compensation law for persons working in/on shipyards docks/ships, contains what appears to be an absolute, non-waivable (apparently by action or inaction) prohibition of garnishment of benefits under the Act. (33 USC §916)
BACKGROUND:
Section 916 provides that:
No assignment, release, or commutation of compensation or benefits due or payable under this chapter, except as provided under this chapter, shall be valid, and such compensation and benefits shall be exempt from all claims of creditors and from levy, execution and attachment or other remedy for recovery or collection of a debt, which exemption may not be waived.
Unlike numerous subsequent federal benefit statutes, the Act, which became law in 1927, does not make an exception for the collection of child support. The federal Longshore and Harbor Workers’ Compensation Act (the “Act”) prohibits attachment or assignment of such benefits for the payment of child support, even with the consent of the employee. OCSE has issued PIQ-96-03 confirming that benefits are not subject to garnishment.
The expansion of federal payments subject to wage withholding and garnishment under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) did not specifically include the payments received from Federal Longshore and Harbor Workers’ Compensation. However, the PRWORA amendments to 42 USC §659 to allow attachment of some federal payments has been interpreted by at least one court to include payments from the federal portion of Longshore Workers’ Compensation. Moyle v. Director, Office of Workers’ Compensation Programs, 147 F.3d 1119 (9th Cir. 1998). Also, some payments made under the Act represent State payments and are not attachable. This leaves State IV-D Programs to investigate whether or not the employee has elected to receive benefits from a State or Federal source. The Act should be amended to make all payments attachable.
NCCSD Position Paper on Federal Longshore and Harbor Workers’ Compensation Page 2
PROPOSAL:
Section 916 should be amended to allow attachment or assignment for payment of child support. A provision to change this is included within President Bush’s Budget Proposal.
NCCSD STATEMENT IN SUPPORT:
It is not surprising that the Act, having been enacted in 1927, did not distinguish between child support and the claims of creditors. However, the continuation of this omission twenty-eight years after the enactment of Title IV-D of the Social Security Act, at a time when federal policy generally is to make benefits based on remuneration from employment available for the payment of child support, is unfair to children and families in need of child support. Workers’ Compensation benefits under state laws are available for the satisfaction of child support obligations. Benefits under a federal workers’ compensation program are not. The anomaly of whether a child can get child support depends on whether the obligor parent’s worker’s compensation benefits are pursuant to federal or state statute should not be permitted to exist.