Answer: A judgment creditor initiates a wage garnishment by obtaining a Writ of Execution from the Court and filling out an Application for Earnings Withholding Order and provide both documents and the appropriate fee to the sheriff's department. The sheriff's office will then prepare an Earnings Withholding Order ("EWO") and serve it on the employer. An EWO directs the employer to withhold part of the earnings of the employee and pay the withheld sums to the sheriff's office.
The sheriff's department will also provide the employer with a questionnaire called the Employer's Return that must be completed and returned within 15 days. The employer's return provides important information to the judgment debtor regarding whether the judgment is collectible.
The EWO has the same force of a court order. If the employer fails to complete the questionnaire, the first step is usually a strongly worded attorney letter to the employer. If the employer still refuses to fill out and return the questionnaire, you can file an action for contempt of court. Often the threat of fines and jail time will motivate the employer to fill out the questionnaire. You can also recover your legal fees if the court finds the employer in contempt.
Once you have the questionnaire in hand, you can determine if the employer wrongfully withheld wages. The law allows judgment creditors to held employers directly liable if the employer failed to withhold wages as required for the EWO.
Enforcing employer obligations with respect to the Employer's Return and wage garnishment orders are best done with the assistance of an attorney. Please contact us at (619) 448-2129 if you need further assistance.
About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.