|Thursday, May 15, 2008Vol. 7, No. 5|
Garnishments: What Steps Should Employers Take?
At some point, nearly every employer will receive a notice of garnishment. Those employers who do not deal with garnishments frequently will likely be scratching their heads and wondering what to do next. The good news is that the garnishment notice itself contains detailed instructions, so the majority of questions can be answered by thoroughly reading it. The bad news is that the instructions can be somewhat confusing and do not address all scenarios.
Before we get ahead of ourselves, let’s start with a definition: a garnishment is a legal process which requires an employer to withhold, and then forward along a portion, of an employee’s income to pay off a legal judgment or debt. Employers can be held liable for:
Therefore, employers need to make sure they follow the instructions to the letter.
Different Laws Apply to Different Garnishments
Most garnishments are regulated primarily by state law, especially run-of-the-mill consumer-debt garnishments, which are the primary focus of this article. However, different laws will usually apply to:
So again, it is critical to closely review the garnishment, support order or lien notice in each case since they are not all the same.
Below we will go through the typical steps to take after receiving a garnishment and answer some of the most common garnishment questions we receive, focusing on Minnesota and Wisconsin laws. An employer with locations in multiple states should expect that each state’s requirements will be vastly different. Also, keep in mind that the guidance below deals primarily with garnishments, whereas different requirements may exist for support orders, tax liens, etc. Support orders are briefly discussed below.
What Steps Should I Take Immediately After Receiving a Garnishment?
How Do Earnings Garnishments Work in Minnesota and Wisconsin?
In Minnesota, garnishments generally require you to withhold from each of the employee’s paychecks that is issued within the 70 day period beginning on the day you receive the garnishment (looking to the date the paycheck is issued). As you withhold from each paycheck, you complete the withholding worksheet that is provided with the garnishment notice. At the end of the 70 day period you send the completed withholding worksheet to the creditor and the employee. However, you will hold on to the withheld funds and will not disburse them to the creditor until either the employee authorizes you to, or until the creditor provides you with a form called a writ of execution. If you are not authorized to disburse the funds by the deadline listed in the garnishment notice, then you would return the withheld money back to the employee.
In Wisconsin, garnishments generally require you to withhold from each of the employee’s paychecks for all pay periods that begin within 13 weeks of the date the garnishment was received (so you focus on the date the pay period begins, not on the date the paycheck is issued). You must then forward to the creditor the amount withheld from each paycheck within five to ten business days after the payday.
In both Minnesota and Wisconsin, the creditor must pay the employer a $15 garnishment fee or else the garnishment is not valid. Also, in both states the employer needs to immediately stop withholding from the employee once the debt is paid in full, since the employer may be liable for overpaying the creditor.
What if the Employee No Longer Works for you?
If an employee no longer works for you or is not expected to earn any wages during the garnishment period, then in both Minnesota and Wisconsin you are required to send written notice to the creditor or their attorney. The specific notice requirements and deadlines are described in the garnishment form.
What if the Employee Tells Me He or She is Disputing the Garnishment?
In both Minnesota and Wisconsin you must proceed with the garnishment even if the employee tells you it’s a mistake, begs you not to, says they are hiring an attorney to fight it, etc.
In Minnesota, you would continue the garnishment for the full garnishment period, but you would not forward the funds to the creditor or their attorney until the employee authorizes you to or until the creditor provides you with a form called a writ of execution.
In Wisconsin, you would only stop the garnishment action if the employee provides you with a form called the debtor’s answer, and you would not re-start the garnishment unless notified by the court.
How Much Do I Withhold from the Employee’s Pay?
In Minnesota, you withhold the amount specified in the garnishment notice. And this generally is the maximum allowable amount under Minnesota law which is the lesser of either 25% of the disposable earnings, or the amount of the disposable earnings that exceed 40 times the current federal minimum hourly wage.
In Wisconsin, you withhold the amount specified in the garnishment notice. And this generally is the maximum allowable amount under Wisconsin law which is 20% of the disposable earnings.
You are probably asking what “disposable earnings” are? Well, in both Minnesota and Wisconsin, disposable earnings are all the money left over after deducting all state and federal taxes (including FICA taxes). Note that other deductions for things like insurance premiums, union dues, and 401k contributions are not deducted from gross pay when calculating disposable earnings.
Note that there are different maximum withholding limits for child or spousal support orders, and potentially for liens. Employers should review the garnishment or order carefully and should seek assistance if it appears a form is asking them to withhold above the legal maximum.
What if the Employee is Subject to Multiple Garnishments or Support Orders?
Review the garnishment notice for instructions on multiple garnishments. However, child or spousal support orders usually take precedence over any earnings garnishments, as due to tax liens. Situations with multiple garnishments, liens or support orders can often become quite complex, so employers are encouraged to seek assistance from their attorney or the HR Hotline.
In Minnesota, in the case of multiple earnings garnishments, the employer will generally have to enforce the garnishments in the order received and complete the first received garnishment before moving on to the second. However, the 70 day period during which wages are subject to garnishment runs from the day summons is received, whether or not any money is withheld.
In Wisconsin, only one garnishment can be handled at any given time and the employer will generally have to enforce the garnishments in the order received, running the second garnishment for the 13 week period following expiration of the prior garnishment. Additionally, the employer does need to send notice to the second creditor that there is a garnishment already in place.
Can We Just Terminate the Employee Rather than Dealing with all of this?
No, employees generally cannot be retaliated against for being garnished.
What are Support Orders?
Support orders are similar to garnishments, except that they require money to be withheld from an employee to pay for child support or spousal support (aka alimony). Support orders generally take priority over any consumer garnishment, even if the garnishment was received prior to the support order.
A couple of the main differences between garnishments and support orders is that support orders are subject to higher maximum withholding limits, and support orders can last for extended periods of time and the withheld funds must generally be forwarded on to the state support collection agency promptly after each payday (you have five days in Wisconsin and seven days in Minnesota).
As with garnishments, always review the support order carefully and contact the state support agency or your attorney with any questions. Associated Financial Group’s HR Hotline clients who have additional questions may contact the Hotline at 800-258-3190 or firstname.lastname@example.org. For more information on subscribing to the Hotline contact us at email@example.com.
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