Garnishments A-Z: An In-depth Look at Federal and Illinois Garnishment Law

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1 Garnishments A-Z: An In-depth Look at Federal and Illinois Garnishment Law Chicago Chapter of American Payroll Association June 14, 2013 Presented By: Robert McCabe James D. Rock Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer P.C.

2 Overview Illinois Law vs. Federal Law Limits on Wage Deductions Priority of Wage Deduction Orders Child Support and Other Special Circumstances Wage Assignments Potential Penalties

3 Federal Law Federal Consumer Credit Protection Act and Related Regulations Bankruptcy Laws Internal Revenue Code Administrative Regulations Authorizing Administrative Garnishment

4 Illinois Law Include, but not limited to: Illinois Code of Civil Procedure Section et seq. Income Withholding for Support Act Illinois Administrative Code Wage Garnishment Wage Payment and Collection Act

5 Limitations on Wage Deductions Federal Law 25% of disposable earnings for a week or The amount by which disposable earnings for a week exceed 30 times the federal minimum hourly wage

6 Illinois Limitations on Wage Deductions Deduction cannot exceed: The LESSER of 15% of gross weekly wages or The amount by which disposable earnings for a week exceed 45 times the federal minimum wage or the Illinois minimum wage, whichever is greater, Pension and Retirement Benefits Exempt

7 Federal Law vs. State Law If a state garnishment law differs from the Consumer Credit Protection Act, the law resulting in the smaller garnishment must be observed. Illinois law will generally result in a smaller garnishment.

8 Wage Deduction Notices from Other States When is an employer required to respond to and comply with a wage deduction notice from a state other than Illinois?

9 Priority of Orders: First in Time Generally, multiple wage deduction orders are to be honored in the order received by the employer Stacking: First wage deduction proceeds until paid in full Once the first wage deduction is paid in full, next wage deduction in priority order may begin until paid in full Creditors must wait in line until each preceding order is paid in full

10 Spouse and Child Support Orders Have priority over all other wage deduction orders Supersede any wage deduction already ordered, except IRS tax lien Seek legal advice if this occurs

11 Calculating and Submitting Child Support Non-custodial parent s net income Number of children Remittance form Prior Obligations of Support or Maintenance Family that is first in time, not support order entered first If combined amount exceeds FCCCPA limits, employer must prorate

12 Federal Liens and IRS Levies Unless relating to spouse or child support matters, no priority over a wage deduction order Priority over spouse or child support order, if first in time IRS tax lien perfected on date filed with County Recorder, not date served on employer If filed with recorder before another wage deduction order is filed with employer, tax lien is first in time

13 State or Federal Wage Levy Review the relevant filing dates Do not stop deductions for earlier filed wage deduction order If uncertain, ask the court for direction

14 How Do I Respond to An Interrogatory/Answer to Wage Deduction Proceedings? Seek legal counsel Complete the Form and Calculations Send to Court (original) Plaintiff s attorney (copy) Defendant (your employee)

15 Citation to Discover Assets Can be used to enter an order that can be entered in a wage deduction case. Upon receipt: Seek legal counsel Respond to interrogatories Do not deduct any amounts or send payments until a court order is received Remember first in time: No greater priority than other wage deduction orders (unless spousal or child support)

16 Child Support Order Income Withholding for Support Form Must honor order from any state Supersedes other wage deduction orders Exception: IRS levies filed first in time

17 Student Loans Illinois Student Assistance Commission Authority to Issue Administrative Wage Garnishment No greater priority than others First in Time State and federal limitations on wage deductions apply

18 Wage Assignments Voluntary agreement between employee and third party Subject to statutory limitations on wage deductions Honor multiple wage assignments in order received Wage deduction orders take priority over wage assignments

19 Bankruptcy Automatic stay Generally, effective when case is filed and case number is assigned Creditors may seek relief from the court Seek legal advice

20 Examples of Penalties for Failure to Comply FCCPA Payment of back wages Restoration of improperly garnished accounts Reinstatement of employee Criminal prosecution for willful violation IL Income for Withholding Support Act Knowing failure to withhold or pay $100 per day up to maximum $10,000

21 Employment Actions May an employer terminate an employee who is subject to a wage garnishment? What if the employee has multiple wage garnishments?

22 Questions???

23 Contact us Robert McCabe James Rock Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. Chicago: (312) Vernon Hills: (847) Naperville: (630) Crystal Lake: (815) Bloomington: (309)

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