Employment: What Do You Do With A Continuing PostJudgment Earnings Garnishment Summons? - Part II
Before getting into specifics of what to do with a garnishment summons, it is important to note: if you do nothing with the garnishment summons, under Oklahoma law you may become responsible for your employee’s debt! This harsh result prescribed by the Oklahoma statutes ensures that employers respond to continuing postjudgment earnings garnishment summons.
Back to what you must do with a continuing postjudgment earnings garnishment summons . . . in short, you must answer the garnishment summons. Depending on the factual circumstances surrounding your employee’s status, that answer will vary. It may be that this person is no longer employed by you. If that is the case you must let the court and the creditor seeking garnishment know. Again, even if the person is no longer employed by you, if you do nothing with the garnishment summons, under Oklahoma law you may become responsible for your ex-employees debt!
The Documents You Need to Know About.
When you get a continuing postjudgment earnings garnishment summons, you will also receive:
1) A Continuing Garnishee’s Answer/Affidavit and
2) A Notice of Garnishment & Exemptions and Application for Hearing.
Continuing Garnishee’s Answer/Affidavit.
The Continuing Garnishee’s Answer/Affidavit is a form that must be filled out by you, the employer. After it is completed, you must send it to all the parties and to the Court.
The form first requires that you identify yourself as either an individual, a partnership or a corporation. Next, the answer/affidavit requires you (or one of your employees on your behalf) to state the date the garnishment summons was served on you. This is the date that your registered service agent received the garnishment.
For your actual substantive response to the garnishment summons, the answer/affidavit supplies several “ready made” responses ranging from, “at the time of service of the garnishment summons the individual named in the action was not employed by me,” to “nothing is being withheld due to a prior continuing garnishment on this employee’s wages.” Again, the answer/affidavit is a form that allows you to select various options that may fit your factual circumstances. Review the answer/affidavit and determine which response best matches your situation.
Item two (2) is the option you will choose if the employee’s wages will be garnished. Item two (2) provides:
2. At the time of service of the garnishment summons or upon the date it became effective, the garnishee was indebted to the judgment debtor or had possession or control of the following property, money, goods, chattels, credits, negotiable instruments or effects belonging to the judgment debtor as follows: (Please check appropriate response)
_____ Earnings as shown on the attached Calculation for Garnishment of Earnings form which is incorporated by reference into this answer;
_____ Other; specify:
The Calculation for Garnishment of Earnings is the third page of the answer/affidavit and sets forth the necessary items needed to calculate the amount of an employee’s wages that should be garnished each pay period. Use this sheet to determine how much to withhold from each paycheck.
Item four (4) of the answer/affidavit is very important, because it is the area on the form where you acknowledge to the court that you have given the employee/judgment debtor notice that a garnishment proceeding has been instituted against them. This section requires you to acknowledge that you have mailed or hand delivered to the judgment debtor/employee, a copy of the Notice of Garnishment & Exemptions and Application for Hearing.
Item five (5) allows you the garnishee to set forth any other defenses or reasons why you are not obligated to garnish your employee’s wages. These will vary or may be wholly inapplicable depending on the circumstances.
Since this is an affidavit, or a written declaration made under oath before a notary public or other authorized officer, the answer/affidavit must be notarized.
Lastly, and importantly, you must send this affidavit/answer to several parties including, the court, the judgment debtor (the employee), or the attorney for the judgment debtor, and the creditor or creditor’s attorney. If this document is not received and filed by the court, there will be no official record that you the garnishee fulfilled your obligations to answer the garnishment summons. Again, there is a very harsh result for failure to answer a continuing postjudgment earnings garnishment.
While there is a “safe harbor,” or second chance provision in Oklahoma law, you do not want to rely upon that to get you out of trouble. Respond quickly and accurately if you receive a garnishment.
Notice of Garnishment & Exemptions and Application for Hearing.
After you complete this document, you will give a copy of it to your employee by mail or in person.
Perhaps the most important thing to remember when responding to a garnishment is to carefully read and follow all directions provided. Garnishment is not meant to be a trap, but can be for the unwary employer. Further, as a means of avoiding any pitfalls, all employers should make sure that garnishment summons are sent to a central location and handled by an individual who is familiar with the process. Even if your company has a separate designated registered service agent set up to receive all legal documents or lawsuits, you should have procedures in place to ensure all garnishment summons are delivered to the appropriate individual(s) who are knowledgeable and responsible for responding on your behalf. Lastly, when in doubt, it is a good idea to consult your attorney in order to avoid the harsh result of being held responsible for your employee’s debt.
By McLaine DeWitt Herndon, firstname.lastname@example.org