Disposable earnings for Garnishments

PRM

Is Per Diem, that is included with regular earnings and paid on a payroll check,considered part of an employee's disposable earnings for a garnishment?

Al Vreeland

Yes

Al Vreeland
Editor, Alabama Employment Law Letter
Lehr Middlebrooks Price & Vreeland, P.C.

PRM

Are there any circumstances that would cause it not to be considered when figuring disposable for a garnishment?

Geno

[font size="1" color="#FF0000"]LAST EDITED ON 11-07-05 AT 02:21PM (CST)[/font][br][br]
PRM,

No, travel per diems are not considered regular wages and therefore should not be subject to garnishments. Remember, they are reimbursement for out-of-pocket expenses incurred by the employee not wages.

Geno

Geno

Al,

Please expand on the rational for garnishing the reimbursement of out-of-pocket employee expenses.

PRM

The per diem that I am speaking of is an hourly amount that is paid to employees (not taxable) for every hour they work. This is paid to all employees that live over a certain distance from the job.

Crout

What do you mean, it's not taxable? Is it not income?

pork1

PRM: In all of my time in HR I have never heard of this type of payment or reason for a Per Diem. PerDiem as compensation is paid to Board Members who other wise would not be involved in your company, like your board of directors, or government employees such as your members of the legislature, because they have to come to a high cost living location to do their business, so they get milage and Per Diem. Washington D.C. is a very high cost living area and when I used to travel to that location for work, I would get $100.00 a day to do my business in that location. It is much higher now than in those days, this is just an example.

Your company may have some special value that is computed into one's hourly wage for similiar reasons and the company calls it Per Diem. If that were the case, then everyone who lived in the stated range of miles would have that figure included in their hourly rate of pay and it would be "income" regardless of the reason for the financial benefit. The company may choose what everreason they wish to justify each penny in the hourly rate of pay. It must add up to be at or greater than the minimum wage rate.

This being the case your company must still use these monies in your calculations of garnishment withholdings.

PORK

pork1

PRM: I would not count it for it comes from the Accounts Payable Clerk in our company and not the payroll clerk. It is supposed to represent a reasonable replacement of one's expenses incurred in the conduct of company business.

If it is being paid out of payroll, I question whether it is not someone's idea of beating the system involved in FLSA. It would be that someone is calling a guarnteed base amount of pay as "Per Diem" and therefore, it would not receive the same tax treatment if it is a true per diem payment. But if the payroll clerk is paying it then you must include all compensation as total income for court ordered garnishments and I would pay it, accordingly. I bet you will hear some screams from someone, when you include it and if you do have them show you were in the FLSA is per diem not included in the W-2.

PORK

Al Vreeland

The question is whether the Per Diem is truly an expense reimbursement or whether its really additional income. As you can see from the posts here, people use the term very differently.

A pure expense reibmursement (e.g., payment for out-of-pocket travel expenses, mileage, etc.) would not be considered income and therefore not subject to garnishment under Alabama law.

In its simplest form, a Per Diem ("per day") is a flat daily stipend intended to approximate daily travel expenses - usually on the conservative side.

What you describe sounds much less like an expense reimbursement and more like additional income. As I understand it, you calculate the per diem based upon a person's hourly rate and actual hours worked. These factors obviously don't correlate to the expense of travel or the distance a person travels to a fixed work site. That is, someone with a higher hourly rate would recieve a higher Per Diem, even though they might live closer to the facility than an employee with a lower hourly rate and therefore lower Per Diem.

On the contrary, these factors make the Per Diem much more like a bonus or a sweeetener from the recruiting standpoint (especially where you don't have a sufficient pool of qualified workers in the local workforce). I suspect that your accountant has already concluded this, since the payments are included in regular earnings and paid on a payroll check.

The IRS will go through this analysis to determine whether you have been properly reporting and withholding. A court enforcing a garnishment order will, most likely, only look at the payroll and tax information - which in your case includes the Per Diem.


Al Vreeland
Editor, Alabama Employment Law Letter
Lehr Middlebrooks Price & Vreeland, P.C.

pork1

AL, VERY WELL DONE. Thanks for sharing your legal understanding as it applies to this subscriber's concern. I hope more of your brothers and sisters will jump in and give such clear advise.

PORK

TN HR

[font size="1" color="#FF0000"]LAST EDITED ON 11-10-05 AT 00:14AM (CST)[/font][br][br]Like the gentleman attorney said, true per diem is paid, as the term implies, on a per day basis. I am all too familiar with the hokus pokus "per diems" that some companies (and certain industries are notorious for pulling these shenanigans) offer.

How ridiculous is the notion to pay a per day stipend on an hourly basis? Hokus pokus per diems, hourly per diems or per diem "splits" (as the road whore powerplant community calls them) where they give you an hourly rate of, say $45, with a $10 per diem split (so you're only taxed on $35/hr) are HOG MANURE!

The bottom line, true per diem is never taxable and should never be considered as wages for any purpose. The hog manure variety is nothing more than bonafide compensation and should be treated as such.

EDIT: For the record, pOrK, it matters not which entity within your organization disburses funds for purposes of determining if it is taxable or not. It could be the janitor dispensing cash in the breakroom.