Most of the time an employee knows when his wages are about to be garnished: He is sued, the court enters a judgment against him for the amount owed, and thereafter a wage garnishment order ensues. The employee has plenty of time to plan for it, forewarn his employer, and make the process as palatable as possible, should a repayment arrangement not be possible.
Not so for many of the so-called “voluntary" wage assignments that are being included in consumer credit and loan agreements with greater regularity than ever before. These provisions allow the creditor to skip the formality, delay, and expense of the legal process altogether, and go straight to the employer with a demand for garnishment.
An employee typically does not learn about this kind of garnishment until after the garnishment has taken place and he notices his pay check is short.
Difference between Wage Assignments and Wage Garnishment Orders
Technically speaking, a wage assignment is a provision in a private agreement — often a consumer credit agreement like the ones used in buying a refrigerator.
The “wage assignment" provision assigns the borrower’s future wages to the creditor in the event of default by non-payment. If a default occurs, the creditor in effect forecloses on the security (the wages) by sending a garnishment demand to the employer. Usually, the letter is written by the creditor’s attorney or billing department.
To enforce a wage assignment, no court process is involved. That’s the nature of the provision. It says no court process need be involved and authorizes the creditor to skip the time and expense of court and go straight to the employer. It also, of necessity, eliminates the debtor’s opportunity to challenge the debt in court or seek limitations on the garnishment.
Most garnishments are based on a judgment or court order and constitute official orders of the court. The request for garnishment is made to the court and the court grants the request by issuing a garnishment order. This is the case for most wage garnishments for child support.
Types of Voluntary Wage Assignments
Voluntary wage assignments, often simply called “wage assignments," are those that the indebted employee enters into by agreement. He may agree to it by signing a consumer credit or loan agreement, or he may agree to repay a debt by entering into a repayment agreement with a wage assignment provision.
The typical wage assignment provision allows the employer to take the employee’s future wages as security for the debt involved. In the event of default or nonpayment, it authorizes the creditor to go straight to the employer with a demand for wage garnishment, no court filing or judgment required.
Considering these wage assignments as “voluntarily" is a stretch. Most borrowers don’t read the fine print in consumer contracts and loan papers, have no bargaining strength to oppose these provisions even if they want to, and don’t learn about the wage assignment until it is too late to do anything about it.
Nonetheless, unlike a court order, they do have a voluntary component in that the borrower chose to obtain the credit and afterwards to use it to buy goods or services or receive cash.
Federal Garnishment Law Does Not Protect Wage Assignments
In 1970, Congress passed Title III of the Consumer Credit Protection Act. Under that Act, the federal government took control over wage garnishment proceedings for the first time.
Generally speaking, this law limits the extent to which earnings can be garnished to 25% of “disposable earnings" or to amounts above 30 times minimum wage, whichever is less. It also prohibits the employer from terminating an employee for any wage garnishment based on a single debt.
The definition of “disposable earnings" is key to the determination of the maximum allowed garnishment. “Disposable earnings" means earnings after reduction for legally-required deductions like federal, state and local taxes, the employee’s share of State Unemployment Insurance and Social Security, and Worker’s Compensation.
Importantly, the permitted deductions DO NOT include sums withheld as part of a voluntary wage assignment; as such deductions are not legally required. What this means is that wage garnishment protections do not take into account the effect of voluntary wage assignments. Also, they do not apply to real estate purchases (which have specific contracts).
Furthermore, because wage assignments are not technically considered garnishment under federal law, an employer can lawfully terminate an employee for a single garnishment based on a voluntary wage assignment. Put another way, the anti-termination protections of federal law do not apply to wage assignments.
State Law Limitations on Wage Assignments
Many states have passed laws making wage assignments invalid, due to their intrusive and potentially devastating effect on borrowers. Some states bar any form of wage assignment, while others limit wage assignments to only child or spousal support.
Still others require the written consent of both spouses, or the execution of an entirely separate document addressing the assignment (so as to prohibit it from being buried in the fine print). In all cases, the employer need not comply with an illegal wage assignment, and often would be legally liable for doing so.
Needless to say, the field of voluntary wage assignments is a complicated one. Consulting with an experienced labor and employment, debtor-creditor, and/or consumer counsel is an important part of properly navigating this area of employment.