Once the employer (known as the “garnishee”) is served, the employer may challenge the existence of the judgment or the amount claimed due on the judgment, which is referred to as a “traverse.” If the employer does not file a traverse, all property, money, or effects of the employee that are in the possession of the employer become subject to garnishment. Typically, in the employment context, this will simply include the employee’s wages. The employer immediately must begin withholding certain amounts from the employee’s wages each workweek to satisfy the garnishment. The employer may withhold the lesser of: (1) 25% of the employee’s disposable earnings (gross earnings minus required federal and state withholdings) for that workweek, or (2) the amount by which his disposable earnings for that workweek exceed 30 times the federal minimum hourly wage prescribed by the federal Fair Labor Standards Act (currently, $7.25 per hour). If the underlying judgment is for alimony or child support, however, the employer may withhold 50% of the employee’s disposable earnings each workweek.
Logistically, a “continuing garnishment summons” is served on the employer. This means that the employer must file an answer to the garnishment summons (and serve a copy on the plaintiff) no later than every 45 days from the time the summons was served until the 195th day after service. In each answer to the garnishment summons, the employer must set forth any amounts that the employer owed to the employee from the time the summons was served (or from the date of the prior answer) to the date of the current answer. The form of the answer is set forth in the statute and also usually is included in the summons. Along with the answer, the employer must send to the court the money it has been garnishing from the employee during that period. If the employer fails to file an answer timely, it automatically is in default. However, there are certain procedures by which an employer then may be relieved from default.
With this background in mind, we turn to the opinion at issue. The State Bar of Georgia, the entity that regulates lawyers and the practice of law in Georgia, issued an advisory opinion stating that a non-lawyer who answers a garnishment proceeding other than for himself is engaging in the unauthorized practice of law. This holding stems from the rule in Georgia that a corporation cannot represent itself in a legal proceeding, but rather must be represented by an attorney. In light of the nature of a garnishment proceeding in which an employer must be served and then file an answer or risk default, as described above, a garnishment is considered a “legal proceeding.” The Supreme Court of Georgia approved this opinion.
The effect of this ruling is that employers in Georgia who are corporations or limited liability companies now will have to have a lawyer prepare, sign, and file any garnishment answers. Since garnishments involve payroll issues, employers historically have directed payroll or human resources officials to handle garnishment proceedings. Under the new opinion, although it likely will still be acceptable for clerical employees to coordinate the payroll deductions and gather the information necessary to prepare the answer, they no longer will be permitted to prepare, sign, or file the answer. Employers are advised to seek legal advice on how to handle garnishment proceedings in the future.
For more information, contact Amy Combs Bender
at 770.818.1421 or [email protected]