Monday, June 18, 2007

California Wage Garnishments And Duties of Employers

Question: I had the sheriff's department serve a wage garnishment on the judgment debtor's employer, but the employer hasn't done anything with it yet. What can I do?

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.

7 comments:

Anonymous said...

Great postings!!

Question: can you file a for Wage Garnishment where the judgment debtor is a 1099 Contractor.

If not, what is the best way to "garnish" or otherwise levy on a continuing monthly commission that is being paid to the judgment debtor as 1099 income by an "employer"

Carl Starrett said...

California law provides a great deal of flexibility in going after money owed to a 1009 contractor. In fact, a 1099 contractor has far less protection than an employee. You can garnish all of the commisions owed to the 1099 contractor.

You can have the Sheriff levy on any money owed by a third party to the judgment debtor. You just need to get a Writ of Exeution, pay a small fee and give written instructions to have the Sheriff levy on the funds. The third party then must pay the money to the Sheriff as a payment toward the judgment.

You can also file a motion an assignment order. If you need further assistance, please contact my office at (619) 448-2129.

bradley said...

my employer was served a wage garnishment on me to which i submitted an exception. i heard nothing back from the Sheriff for over 30 days, and my wages were still being garnished, so I called the sheriff for information. the person on the phone was rushed and all she said was taht the wage garnishment was being removed because of a deadline that was missed by the person who has the judgement.

what would this missed deadline have been, and can another wage garnishment be levied against me?

Anonymous said...

I had wage garnishment done on me back in 2006, then i filed for exemption, the lawfirm did not respond within 10 days so money went back to me. However, I just received another wage garnishment letter,it has the same case # but different lawyers, can they reopen wage garnishments? I thought it was over completely once they didn't respond to my exemption. Please help! I just filed another exemption but will this be an ongoing thing?

kasfluv said...

Hi! Excellent postings with great information!
I just served a wage garnishment on an employer, unfortunately the defendant signed for it, never responded and withheld it from the company. When I did not receive a return on the documents, I contacted the owner of the company who knew nothing of the court order. Now, apparently, the "employee" has become an "independent contractor", stating (in a voicemail message to me) that there are "no wages to garnish."
I have been trying to collect on this debt for 11 years, and am disgusted at this blatant disregard for the law, court orders, and the ease with which SO MANY get by WITHOUT paying a valid debt with a judgment!
What should I do next? The Compnay owner is going to call me on Wednesday and I would love to have all of my "ducks in a row" when I speak to him.
Thank you so much!! Any help will be greatly appreciated!!
Kelly~~

kasfluv said...

Hi Carl! Excellent postings with great information!
I just served a wage garnishment on an employer, unfortunately the defendant signed for it, never responded and withheld it from the company. When I did not receive a return on the documents, I contacted the owner of the company who knew nothing of the court order. Now, apparently, the "employee" has become an "independent contractor", stating (in a voicemail message to me) that there are "no wages to garnish."
I have been trying to collect on this debt for 11 years, and am disgusted at this blatant disregard for the law, court orders, and the ease with which SO MANY get by WITHOUT paying a valid debt with a judgment!
What should I do next? The Compnay owner is going to call me on Wednesday and I would love to have all of my "ducks in a row" when I speak to him.
Thank you so much!! Any help will be greatly appreciated!!
Kelly~~

Anonymous said...

What if an employer does not comply with an EWO? As in they have returned the Employer's return but have not deducted wages on the debtor. Can the judgement creditor file an order to show cause for contempt against the employer for failure to comply?