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Jenkins Fenstermaker, PLLC

325 Eighth Street

Huntington, WV 25701-2225

Phone (304) 523-2100

Toll Free (866) 617-4736

By James Heslep Of Jenkins Fenstermaker, PLLC on 02/24/2023
Attachment of Black Lung Benefits in WV

Employers are generally aware that their employees’ wages can be garnished to pay child support, alimony, and other judgments or debts. However, when a current or former employee is receiving federal benefits, like Social Security or black lung benefits, various state and federal laws govern which benefits may be diverted to a creditor or payee and which may not. Attachment of black lung benefits in WV is allowed only under specific and limited conditions.

Can Creditors Garnish Black Lung Benefits in WV? More on Attachment of Black Lung Benefits in WV

Answering the question “can debtors garnish black lung benefits in WV?” requires review of federal law, but it’s not the only question you should ask. Garnishment, or recovery prior to issuance of payment, is not permitted. However, once the benefit has been paid into the recipient’s bank account, the answer can be different, depending on the kind of debt owed as well as the specifics regarding benefits received.

Federal law, under 20 CFR § 725.515(a), generally protects black lung benefits from attachment and recovery actions. However, 20 CFR S 725.515(b) provides exceptions to this exemption. Specifically, that section allows attachment of benefits due from or payable to enforce a legal order for the payment of specific debts, such as child support or alimony. And debts to state or federal entities may also be reachable to repay a debt owed the governmental unit or entity.

Regulation of Standard Wage Garnishment

When a creditor receives a judgment for the repayment of a debt, it can request that the employer of the debtor withhold a portion of wages for repayment. This is called garnishment. Federal law regarding wage garnishment protects 75 percent of a worker’s disposable earnings from garnishment, or 30 times the federal minimum wage, whichever is greater.

Some states have laws that preempt the federal standard, and WV is one of those. In WV, 80 percent of a workers’ wages or 50 times the federal minimum wage (whichever is higher) is protected. However, federal benefits, like those paid for black lung claims, are subject to different laws.

The Treasury Offset Program and Attachment of Black Lung Benefits in WV

The Treasury Offset Program (TOP) was created to collect debts owed to state and federal entities. This program allows the government to attach federal benefits received in excess of $750 per month or at a rate of not more than 15 percent per month. This assignment is allowed for Social Security and Black Lung Part B benefits as well as some railroad retirement benefits. It is not allowed with regard to Supplemental Security Income (SSI), Veterans Administration, or Black Lung Part C benefits. The government is also not able to seize portions of payments made under the Higher Education Act.

Black lung benefits are classified as Part B benefits if the claim was filed prior to July 1, 1973, while Part C recipients are paid to those who filed claims on or after January 1, 1974.

Attachment of Black Lung Benefits for Child Support and Alimony

The federal code that generally protects black lung benefits from attachment (20 CFR § 725.515) includes an exclusion for child support and alimony payments. Federal Social Security law, under 42 USC § 659, also allows for attachment of black lung benefits for child support and alimony purposes. Federal law under 5 CSR § 581.103 acknowledges this allowance and also includes federal black lung payments in the list of types of income that are subject to garnishment for child support and alimony.

Contact a Black Lung Defense Attorney at Jenkins Fenstermaker

Attachment of black lung benefits in WV is subject to a specific set of state and federal laws. Employers should consult with an experienced black lung attorney to better understand when payments and benefits can and cannot be garnished or attached in various cases. James “Mac” Heslep serves WV employers at the Clarksburg office of Jenkins Fenstermaker, PLLC, and Arnold Janicker assists WV businesses with collections questions and litigation out of the Huntington office. Contact Mac today to discuss black lung benefit issues by calling (304) 521-6120, contact Arnold by calling (304) 523-2100, or complete the firm’s online contact form.