United States: "U Can't Touch This": When A Garnished Employee Goes Bankrupt

Seyfarth Synopsis: Employers increasingly find themselves in the difficult position of deciding whether to continue garnishing an employee's wages pursuant to a garnishment order when the employee files for bankruptcy. On one hand, the employer risks penalties for failing to withhold wages; on the other hand, the employer risks sanctions for violating the automatic stay generated by a bankruptcy filing. Below we discuss this dilemma and employers' options.

MC Hammer filed for bankruptcy, claiming over $15 million in debt even though he was reportedly worth more than twice that only a few years earlier. As American household debt continues to climb, many less talented individuals may be following the Hammer's funky footsteps and seeking bankruptcy relief. If these people are also employees subject to garnishment orders, employers may face the dilemma of (a) withholding wages in violation of the automatic stay in bankruptcy or (b) risking penalties for failing to withhold wages.

Making 'Em Sweat

In California, once an employer is served with an earnings withholding order (an "EWO"), an employer must withhold the amounts required by the EWO from all earnings of the employee during any pay period within the withholding period. California law also sets forth a priority scheme for withholding in the event an employer has been served with multiple EWOs. Wages withheld should be paid to the levying officer, for ultimate payment to the creditor, on a monthly basis not later than the 15th day of each month. The employer's obligation to withhold continues until the employer is served with a notice of termination of the EWO.

Employers should know that service of an EWO creates a lien upon the earnings of the employee and also upon the employer's assets up to the amount required to be withheld. If an employer fails to withhold or pay amounts subject to an EWO, the creditor is entitled to bring a civil action against the employer to recover those amounts: failing to withhold wages properly may make the employer liable for the entire amount the employee owes to the creditor. Additionally, the employer potentially can be hit with contempt sanctions andfor an EWO concerning child supportcivil penalties.

Stop! Hammer Time

Notwithstanding California law, an employee's bankruptcy filing triggers an automatic stay that stops creditors' collection efforts and enforcement actions (subject to some exceptions). That means an employer faces the daunting task of determining whether to continue to comply with California law on garnishments or whether to halt withholding in compliance with the automatic bankruptcy stay.

In the Ninth Circuit (which includes California), a garnishing creditor has an affirmative duty to stop garnishment proceedings when notified of the automatic stay. But not all garnishment actions are subject to the automatic stay. Some garnishmentssuch as collecting on certain domestic support obligations of the employee or on certain taxes owed by the employeeare 2 Legit 2 Quit and are not stayed by the employee's bankruptcy. In those circumstances, if the employer stops withholding, the employee's creditor may seek to hold the employer liable for failing to comply with the garnishment order. Meanwhile, the employee's bankruptcy counsel may threaten the employer with possible sanctions for allegedly violating the automatic stay.

I Told You Homeboy

Whether to stop withholding wages is typically not a clear cut decision and requires careful analysis of federal bankruptcy and state garnishment laws. The employer cannot simply cease withholding funds upon learning of the employee's bankruptcy filing. The proper course of action may also be informed by the amount of potential penalties and liabilities that may result from noncompliance with either the automatic stay or the relevant EWO.

Rather than just throw up its hands in despair and Pray, at an absolute minimum, the employer should:

  • Provide written notice to the garnishing creditor of the employee's bankruptcy filing and notify the creditor of its affirmative duty to stop the garnishment.
  • Send a copy of the written notice to the employee and employee's bankruptcy counsel to encourage their intervention.
  • Notify both the creditor and the employee of any funds that have been garnished but not yet turned over to the creditor. The creditor and employee likely will assert competing ownership interests in those withheld funds, and the employer should avoid favoring one or the other.

Remember, an employer's clear communication with all parties, and also perhaps a request to the bankruptcy court for guidance, is paramount to safeguarding the employer from liability.

Workplace Solutions: Given the overlap of federal and California law and the risks facing employers, the next time an employee files for bankruptcy and then points to his paycheck and starts to sing You Can't Touch This (oh-oh oh oh oh-oh-oh), follow MC Hammer's sage advice: "Stop! [Lawyer] time!" Immediately contact your favorite Seyfarth attorney or the authors of this post for advice on how best to proceed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaqs use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributors own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaqs Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaqs Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaqs right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions