John Roska: How to correct wage garnishments by employer

John Roska: How to correct wage garnishments by employer

Q: I got sued in small claims court and lost, and now wages are being garnished. I think my employer is taking out too much. What can I do about it?

A: First, make sure the employer's really wrong. If they are, ask them to correct it. If they won't, a judge can review and correct it.

Usually, wages can't be garnished without a court judgment against you. The exceptions are if you owe child support, or a state or federal agency. Child support enforcement and the government can do "administrative" garnishments, without a court case.

When someone has a judgment against you, he can try to garnish your wages by serving your employer with a wage deduction summons, along with "interrogatories."

At the same time, the creditor with the judgment must send you a "wage deduction notice." That explains how much you owe, how the garnishment should be calculated, and how to get into court to "dispute the wage deduction because the wages are exempt."

Your employer must respond to the wage deduction summons by answering the interrogatories, filing that answer in court and sending a copy to you.

The employer's answer is supposed to show his calculation of whether you earn "non-exempt" wages. If he calculates that you do have non-exempt, garnishable wages, he should deduct the non-exempt amount every payday.

The employer holds those deductions until a judge orders him to start sending the deducted amounts directly to the creditor.

Calculating a garnishment takes some getting used to. It's the lesser amount of: weekly net pay over $371.25, or 15 percent of gross pay. You must run both calculations to be sure the garnishment is correct.

Zero should be garnished if net pay is less than $371.25 per week. Your wages are completely exempt.

"Net pay" in wage garnishments means gross pay minus four deductions: FICA (Social Security), Medicare, federal tax and state tax. Anything else — like health or dental insurance — should not be deducted from gross pay when calculating the net pay for a garnishment.

When your net exceeds $371.25, then figure out by how much. Compare that net over $371.25 amount to the 15 percent of gross amount. Whichever's less should be the garnishment.

If your employer's garnishing too much, he should correct it. If you're comfortable dealing directly with your employer, explain how you think your calculations are correct, and his should be corrected.

If that fails, or you don't want to rock your employment boat, you can ask for a court hearing. The circuit clerk's office is supposed to have forms you can use.

At that hearing, a judge can review and correct the calculations.

What happens to the money incorrectly deducted from your pay? If it hasn't gone to the creditor yet, the employer should return it to you.

If the money has gone to the creditor, you can try getting it back. But creditors are rarely inclined to return money to debtors.

The employer should correct things by repaying you what was mistakenly deducted. That, however, could strain things with your boss.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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