Can ER stop paying garnishment?

pmaher · March 2003

An employee said her attorney advised her that the only way she can have a garnishment (bankruptcy) refiled or dismissed is for the employer to stop taking the garnishment out of her pay. She works in Illinois.

My thinking is that employers are obligated by court order to follow the garnishment orders and cannot stop taking the deduction. The legal advice seemed week to me but then, I'm not an attorney.

Am I on the right track? Thanks!

MS HR · March 2003

To the best of my knowledge, court orders rule until the employee leaves your company.

LindaS · March 2003

I'm in Wisconsin but hoepfully will be able to provide some assistance...

When an employer receives a garnishment notice, the employee should have received a copy of it as well. With the employee's paperwork is a form that they CAN complete that allows them to answer to the garnishment. The answer they submit basically states that they should not have their wages garnished for a variety of reasons, one of them being that to do so will have them fall below the poverty line. If the employee completes this and presents it to you, the employer, you CANNOT garnish their wages and must forward a copy of this answer to the creditor. It is then up to the creditor to have another hearing wherein a judge will decide whether the employee does, in fact, fall within the poverty guidelines. If the judge decides they do, the creditor is out of luck at that point and will have to start the process all over. If the judge decides the employee is not below that line, the garnishment will proceed. This process usually takes several months and you, as the employer, should be prepared to be at that hearing with wage information (I have had to do this on several occasions).

This process is ONLY when a garnishment is the result of a creditor taking a debtor to court. It does not apply to unpaid taxes or child support.

Hope this helps!

pmaher · March 2003

Linda, this does help. I'll pass responses to our payroll person. Does this apply to someone who has filed for bankruptcy? I assume it does.

LindaS · March 2003

Has the employee presented you with the "Debtor's Answer" to the garnishment? If not, I would go ahead and continue with the garnishment until she does. Without it, you don't have any documented proof as to why you have stopped the garnishment and failure to make timely payments on a garnishment without having that information could make you liable for payment of the debt.

Rockie · March 2003

In my years of experience in HR, I have found that an employee is liable to tell you anything if it's in their favor. One of their favorite lines is: "My attorney advised me......". I always reply "I will be glad to pass this on to the company's legal counsel when I receive it in writing." Nine times out of ten, I never hear anything else.

Pork · March 2003

pmaher:I am not an attorney either, but I can hear those words coming from a "jail-house lawyer" employee. I would bet the attorney is not on-board with adice for this ee. One can not stop taking out a court ordered garnishment without court order to do same, however, now consider that for some reason's the ee's pay is calculated to be less than the minimum allowed by law. Then the company must notify the court of the change in status (demotion with wage change into the negative or there is a tax / education loan court order posted which takes a higher precedent are examples). I would tell the ee to have the attorney with whom he/she spoke to give you a call; I feel comfortable that the attorney would never call you for discussions. Good luck, Pork

Don D · March 2003

There are some attorneys out there in the marketplace who can come up with just as many bogus suggestions as there are employees who will do the same. From personal experience, sadly, I can tell you there are lawyers out there who will make just that sort of comment to a client. They will also put in writing to an employer something that appears on the surface to be acceptable and legal when it is absolutely not. A few lawyers have attended schools of acting and deception, or haven't all of them. I have given this example before but now it has happened twice so I will repeat it. We have had two letters from attorneys advising us in precise legalese to stop sending welfare payments to the agency and start sending them directly to the mother, effective on a certain date. We followed the first notice to the letter and were roundly chastised by another attorney and the court. We knew better the second time. An employer cannot arbitrarily cease following a court order.

Can ER stop paying garnishment?

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