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MORE ON NEW HIRE REPORTING AND STATUTORY CONFLICTS IN SOUTH CAROLINA

Let us recap the situation.

42 U.S.C. § 653a, § 43-5-598 South Carolina Code Ann. (1976, as amended), and this post to the South Carolina Child Support Enforcement Division website all indicate that filing of the New Hire Reporting Form is mandatory in South Carolina. However, the clear language of § 63-17-1210 South Carolina Code Ann. (1976, as amended) indicates that participation in the “Employer New Hire Reporting Program” is discretionary with the employer. Specifically, §63-17-1210 titled "Employer new hire program," provides in relevant part:

Clearly this program is voluntary.

In short, there is a conflict between § 43-5-598 and § 63-17-1210 of South Carolina Code Ann. (1976, as amended). The first South Carolina statute provides penalties for failure to file the New Hire Reporting Form. The second South Carolina statute provides that filing of the New Hire Reporting Form is voluntary.

We advised a South Carolina State Senator of our conclusions regarding the conflicts between these various statutes. We also provided copies of the two conflicting South Carolina statutes as well as a copy of 42 U.S.C. § 653a to him. And this is what he told us:

So let us apply these rules.

Again, we have established that § 63-17-1210--South Carolina’s New Hire Reporting Statute--does not mandate reporting of new hires. Moreover, we know that § 43-5-598 and § 63-17-1210 of the South Carolina Code cannot be reconciled. Additionally, it appears that § 63-17-1210 is the more recently enacted statute and is, therefore, the controlling South Carolina statute. So all we have to do is compare § 63-17-1210 with 42 U.S.C § 653a, “State Directory of New Hires” to determine whether South Carolina employers are required to file the New Hire Reporting Form. The federal statute provides in relevant part:

(a) Establishment
(1) In general
(A) Requirement for States that have no directory
Except as provided in subparagraph (B), not later than October 1, 1997, each State shall establish an automated directory (to be known as the “State Directory of New Hires”) which shall contain information supplied in accordance with subsection (b) of this section by employers on each newly hired employee (emphasis added).

42 U. S. C § 653a required South Carolina, which had no New Hire Directory in 1996, to create such a Directory. Such a Directory now exists. However another provision of the PRWORA provides:

(b) Employer information
(1) Reporting requirement
(A) In general
Except as provided in subparagraphs (B) and (C), each employer shall furnish to the directory of New Hires of the State in which a newly hired employee works, a report that contains the name, address, and social security number of the employee, and the name and address of, and identifying number assigned under section 6109 of the Internal Revenue Code of 1986 to, the employer (emphasis added).

The referenced subparagraphs (B) and (C) set forth the duties of multi-state and federal employees and have no bearing on the duties of non-federal government employers who operate solely within the State of South Carolina. Those categories of employers—including fire departments, school districts, roofers, the Office of the Attorney General, homebuilders, lawyers, developers, newspapers, the South Carolina Legislature, and Dorchester County “shall furnish to the Directory of New Hires of the State in which a newly hired employee works, a report that contains the name, address, and social security number of the employee, and the name and address of, and identifying number assigned under section 6109 of the Internal Revenue Code of 1986 to, the employer.”

The conclusion that one must reach after comparing these various statutes and applying the rules of statutory construction provided by the un-named South Carolina State Senator is threefold. First, § 63-17-1210 conflicts with 42 U.S.C. § 653a. Second, in adopting this particular statute rather than the mandated statute South Carolina has violated Federal Law. And third, South Carolina employers who are not filing the appropriate reports are themselves in violation of Federal Law and may be facing severe fines.