A payroll clerk for a Seattle telecommunications company was recently served with a writ of garnishment against an employee's wages. While processing the garnishment, the clerk discovered the employee was not at the company, although they had similar names, and she filed the writ away and forgot about it, until one month later, when she was fired.
Unfortunately for her and her employer, the creditor had obtained a judgment against the employer for the full amount of the debt owed by the non-employee. Even though the debtor was not an employee, the employer's failure to answer had subjected it to liability for the entire debt.
Fortunately, the creditor's attorney was willing to dismiss the judgment for about $500, the amount of attorney's fees and costs incurred in obtaining the judgment. Had the attorney been unyielding, as many business attorneys are, the employer would have been liable for over $5,000, simply because it had failed to answer the misdirected garnishment.
Most employers and other garnishee defendants know what to do when they are served with a writ of garnishment. Large corporations and banks often have departments whose sole function is processing garnishments.
However, there are many small companies and sole proprietors who have never been served with a garnishment, or have had employee's wages garnished so infrequently that they may not sufficiently understand the process. Their ignorance may be their undoing, as the above example well illustrates.
A writ of garnishment is simply a court order requiring the withholding of property of a judgment debtor, whether a percentage of an employee's wages, bank account funds, or other property. Forms for answering the writ and stamped, pre-addressed envelopes must accompany the garnishment when served. However, as a practical matter, even when the answer forms and envelopes are not received with the writ, a written response should still be provided to the court and to the creditor, as this may save time and legal fees later.
Most importantly, the first answer must be made within 20 days of the date the writ was served. Otherwise, an aggressive business attorney may be entitled to obtain a separate judgment against the employer for the balance of the original judgment against the employee. The employer should answer as soon as the garnishment is served, even if the employee's next payday doesn't fall within the following 20 days.
Banks have it comparatively easy answering garnishments, since they have only to see how much money the debtor has on deposit. Employers have a more difficult time, as they must calculate and withhold a percentage of an employee's nonexempt wages. The writ explains the process, but those unfamiliar with the process may end up calling their Seattle lawyer, or the creditor's lawyer, for instructions.
Employers must ordinarily withhold 25 percent of an employee's non-exempt wages, after taxes and other mandatory deductions are made, unless the employee earns so little that all of his wages are exempt under garnishment statute, or if a lesser amount will fully pay the judgment. If the garnishment is for collection of child support, 40 percent of the employee's non-exempt wages must be withheld.
The answer forms can be helpful in figuring out how much to withhold, but they can be equally confusing to the uninitiated. It is usually sufficient to provide an accounting of the amount withheld on a separate page and attach it to the signed form. But if you are in doubt, it may be beneficial to ask a Seattle business attorney who is familiar with answering garnishments before answering the writ.
Garnishments that are a continuing lien on earnings require withholding of an employee's wages for all pay periods within 60 days after service of the writ. The creditor will provide a second answer form, which should be returned immediately after the last payday during this 60-day period.
In the second answer, a new accounting of all earnings of the employee and a calculation of all wages withheld during the 60 days must be provided. After receiving a second answer, the creditor will submit a judgment to the court for the amount of wages withheld.
Upon receipt of a signed copy of the judgment, the employer must pay all wages withheld under the writ to the court clerk. The clerk will send the money to the creditor, and will discharge the employer from any further obligation on the writ.
A problem area for employers is when two or three garnishments come at the same time. In this circumstance, employers often withhold wages under only one writ, mistakenly believing the other writs to be ineffective because they will expire within 60 days. Actually, wage garnishments line up one after another, each effective for a 60-day period, in the order they were received. Each writ must still be answered within 20 days, but withholding occurs under only one writ at a time.
Another common problem is when an employee's wages are continually garnished by numerous creditors. This places an annoying burden on the employer's payroll staff.
Although the first impulse may be to fire the employee to avoid the hassle, an employer cannot legally discharge an employee just because his or her paycheck is being garnished.
Successive garnishments by the same creditor don't permit discharge of any employee. Only if garnishments from three or more different creditors are received during a 12-month period may an employee be lawfully terminated.
Whenever you have questions about how to answer a writ of garnishment, you should consult your business attorney. If you don't answer the writ properly or within the time required by law, you may end up in court, or paying your employee's debts, or both.