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When An Employer Does Not Return A WG-005 Form

20th December 2011
By Mark D. Shapiro in Legal
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I am not a lawyer, I am a judgment referral specialist (Judgment Broker). This article is my opinion, based on my experience in California, and laws are different in every state. Nothing in any of my articles should ever be considered legal advice.

In this article, when "EWO" is used, it means Earnings Withholding Order (or levy order or wage garnishment), to garnish a judgment debtor's income from conventional wages.

This article is my opinion on dealing with EWO problems that can occur when attempting to have a debtor's wages garnished. What happens if you have an EWO served on a debtor's employer, and wait the time period specified on the form (in California, CCP 706.125(i) and form WG-005 specify fifteen days) and nothing happens?

When an EWO gets served on an employer, it creates an execution lien on the employer, for the wages they should have deducted and sent to the sheriff.

If the employer will not respond or obey the court-ordered EWO, you could sue the employer directly, for the funds that should have been levied during the time you had to wait prior to suing them.

When the employer fails to comply with an EWO served on them, you have two options. You can contact the sheriff or employer and ask them to do what they should, or you could relax, and let your execution lien accumulate against the employer, and then sue the employer at a future time.

Most often, it's 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 employee as your judgment debtor working there. If the debtor is not an employee there, it is best to check that fact for sure, before you think about suing an employer.

Sometimes the judgment debtor or their employer will say the debtor is paid as a consultant, or as a contractor, and is paid by invoice. If that is really the case, an assignment order, or some other strategy must be used.

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 legal. If your levy is second to arrive, it does not attach. You must try an EWO again, after the previous judgment or lien is satisfied.

Once in a while, in small businesses, if the employers say the debtor is not an employee they are lying or misinformed, and cover up for the employee judgment debtor. When the employer lies, it is a civil crime, so the police will not help. That's a shame, I think it should be both a civil and a criminal crime to lie, in response to a court-ordered EWO.

If you think the employer is not telling the truth, you should stop everything and verify the factors that led you to think the debtor was working there. If you know the kind of vehicle the judgment debtor drives, is it at the parking area of the employer during business hours? If you telephone and ask for the debtor, do they answer the phone? Could you examine the 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 are sure the conditions above don't apply, and the judgment 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 plan to comply with the EWO. If that does not work, ask the sheriff - sometimes they do contact the employer, and sometimes they don't.

If contacting people does not work, your next step would be to sue the employer. Usually, it is best not to hurry, as the longer you wait, the more your lien will accumulate. If you are in a hurry, you may 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 2 situations 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 may go out of business or file for bankruptcy protection. If those 2 situations seems unlikely, you are usually better off being patient. Record the dates when paychecks are 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 get paid by the employer via wage deductions or your lawsuit, must be credited toward satisfaction of the judgment.

Usually, if you need to 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 failing to comply with an EWO requires a business lawsuit.

If the amount owed by the employer is larger than the small claim limits, you can sue in civil court. Whether you can add attorney fees to the judgment is something to discuss with your lawyer. If the employer is doing well, and the amount owed is large enough, one may be able to find a contingency lawyer.

One can also use other judgment enforcement strategies while an EWO is ongoing, or waiting for an employer to pay, however you must take care not to over-collect. One can only recover from the debtor or a third party holding the debtor's assets, the amount required to satisfy the current amount owed on the judgment.


Mark Shapiro - Judgment Broker - Free leads for Judgment Enforcers and contingency collection attorneys. - is the best judgment solution, where Judgments quickly get Purchased or Enforced by the best!
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