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Employers And EWOs
In this article, when "EWO" is used, it means Earnings Withholding Order (or wage garnishment or levy order), to levy a judgment debtor's income from conventional employment. When the word employment is used it means the rapidly declining concept where most people could make good money by working for an employer.
This article is my opinion on handling EWO issues that may occur when trying to have a judgment debtor's wages levied. What happens if you have an EWO served on a judgment debtor's employer, and wait the time period specified on the form (in California, CCP 706.125(i) and form WG-005 specify 15 days) and nothing happens?
When an EWO is served on an employer, it creates an execution lien on the employer, for the wages they should have deducted and sent to the Sheriff.
When an employer is served, make sure the person who is served is authorized to accept service. When your process server serves an employer, where they sign, it should read something like ABC Internet company, by serving Sally Serveme, payroll manager, authorized to accept service. In California this would be covered by CCP 416.10.
If the employer will not respond or comply, you could sue the employer directly, for the amount that should have been levied during the time you waited before suing them.
When must the employer respond? The law often reads something like: "from the time of service of summons of garnishment through and including the last day on which a timely answer could have been made for all money, other property, or effects belonging to the defendant which came into the garnishee's hands from the time of the service of the summons through and including the last day on which a timely answer could have been made" So, the clock does start at the time of service, not when the bank/employer decides that they've received it.
When an employer does not respond to an EWO served on them, you have two options. You can contact the employer or Sheriff to ask them what happened, or you could relax, and let your execution lien accumulate against the employer, and then sue the employer later.
Usually, it is best to try contacting the employer first, and then the Sheriff. Sometimes the reason an employer does not respond, is because there is no such person as your debtor working there. If the debtor is not an employee there, it is better to verify that fact for sure, before you consider suing an employer.
Before you think about suing the employer, first ask the Sheriff to follow up with the garnishee's employer and again ask them to return the MOG (Memorandum Of Garnishee) and/or the Employer's return. Next call the employer and ask them why they did not respond, finally, send a certified letter to the highest ranking officer of the non-responding employer, informing them that they should comply or be sued for not complying. Include copies of documents that were served, and the proof of service from the Sheriff. In California, you could remind them about CCP 706.154, and that your lien was created by CCP 706.028.
CCP 706.154 states:
(a) If an employer fails to withhold or to pay over the amount the employer is required to withhold and pay over pursuant to this chapter, the judgment creditor may bring a civil action against the employer to recover such amount. The remedy provided by this subdivision is not exclusive.
(b) Notwithstanding subdivision (a), an employer who complies with any written order or written notice which purports to be given or served in accordance with the provisions of this chapter is not subject to any civil or criminal liability for such compliance unless the employer has actively participated in a fraud.
The WG-005 (Employers Return) is signed by the employer"under penalty of perjury" (Earnings Withholding Order), and perjury is a crime under the California Penal Code 118. See also 126. Perjury is punishable by imprisonment pursuant to subdivision(h) of Section 1170, for two, three or four years.
A letter to the appropriate person at the employer might work, an example letter would be:
I am writing to request that the amounts due me be sent now. The remedy for employer's failure to pay the required amount is that a separate creditor's suit be filed. However, that is not what I want to do. This issue can easily be taken care of with the appropriate payments to the Sheriff, so that I can receive them from the Sheriff.
Please let me know your response. A call from in house counsel would also be appropriate. Again, I want to resolve this without a court action. Please have someone contact me by X date. Thank you for your attention to this matter
Sincerely, Your Name
Sometimes the civil department at the Sheriff is slow to process paperwork. If they employer says the sheriff did not contact them, ask the sheriff when they will be able to serve the EWO on the employer.
Sometimes another creditor or a government entity already has a levy in progress on the judgment debtor's wages. For regular creditors or assignees of record, only one 25% garnishment at a time is allowed. If your levy is second to arrive, it will not attach. You will have to try an EWO again, after the previous judgment or lien is paid off.
Once in a while, in smaller businesses, when the employers claim the debtor is not an employee they are lying or misinformed, and cover up for the employee debtor. If the employer lies, it is a civil offense, so the police cannot help. That is a shame, I think it should be both a civil and a criminal matter to lie, in response to a court-ordered wage garnishment.
If you suspect the employer is lying, you should stop everything and verify the factors that caused you to believe the debtor did work there. If you know what vehicle the judgment debtor drives, is it at the parking lot of the employer during business hours? If you call and ask for the debtor, do they come to the phone? Could you examine the judgment debtor, and ask for a copy of their bank statements and any paycheck stubs? Could you hire a private investigator to determine where the debtor works?
If you know that the conditions above do not apply, and the debtor does work at the employer as a wage-earning employee, the next step is to contact the employer again (if you have not done so already) and ask them when they will comply with the EWO. If that does not work, ask the Sheriff - sometimes they will contact the employer, and sometimes they do not.
If contacting people does not work, your next step is to sue the employer. Usually, it is best not to hurry, because the longer you wait, the more the lien will accumulate. If you hurry, you might be able to sue the employer for a few hundred dollars. If you wait, you might be able to sue for more - perhaps enough to fully satisfy the judgment.
There are two conditions where you would not want to wait, before suing the employer for not complying with the EWO.
1) The employee has lost, or soon will lose their job.
2) The employer is not doing well, and might go out of business or file for bankruptcy protection.
If those two conditions do not seem likely, you are usually better off being patient. Record the dates that each paycheck was paid, so you can figure out how much to ask for in your lawsuit - never more than the amount needed to satisfy the judgment. Whatever you are paid by the employer via wage deductions or a lawsuit, must be credited toward satisfaction of the judgment.
Usually, if you must sue an employer, it is best to use small claims court. Some small claims courts have lower limits for business lawsuits, and suing because of a failure to comply with an EWO is a business matter.
If the amount owed by the employer is more than the small claim limits, one can sue in civil court. Whether you can add attorney fees to the amount owed is something to discuss with your lawyer. If the employer is doing well, and the amount owed is large enough, you might be able to find a contingency lawyer.
You can also use other judgment recovery tactics while a levy is ongoing, or waiting for an employer to pay, however you must take care not to over-collect. You can only recover from the debtor or a third-party possessing their assets, what is required to satisfy the current amount owed on the judgment.
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