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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7655
Experience:  Significant experience in all areas of employment law.
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Hi there, we recently terminated an employee whos final

Customer Question

Hi there,

we recently terminated an employee who's final paycheck included 16 hrs of regular pay (2 days) and 30.9 hours of unused vacation. the individual also had a garnishment that we withheld from the final paycheck. is it possible not to garnish the final paycheck? we were told that we could reduce the garnishment to 15% of the gross pay but should that be calculated using the unused vacation amount (meaning 15% of the 16 hours of regular pay)?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question.

When you refer to a wage garnishment, are you talking about a sum of money that the employee owed you that he or she was paying back through installments? Or do you mean a court ordered wage garnishment against the employee from a third party debtor?
Customer: replied 2 years ago.
it's a court ordered wage garnishment against the employee from a third party debtor
Expert:  Patrick, Esq. replied 2 years ago.
Thank you for this additional information.

California law provides that vacation days are "wages" earned. Specifically, Labor Code Section 227.3 states:

"Unless otherwise provided by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages."

Since vacation pay is a "wage" and wage garnishments typically require a set percentage of an employee's wage to go to the outstanding debt, 15% of the pay for unused vacation in addition to actual hourly wages earned would typically go toward the garnishment.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
Patrick, Esq., Lawyer
Satisfied Customers: 7655
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
would the 15% be calculated on gross or net pay (after taxes, medical etc..)
Customer: replied 2 years ago.
Actually, we are under federal law - does that change anything?
Expert:  Patrick, Esq. replied 2 years ago.
Wage garnishments typically apply to "disposable income," meaning after tax has already been deducted. Accordingly, the percentage taken would be after taxes and other withholdings.

"Actually, we are under federal law - does that change anything?"

If you are in the state of California, California law will always apply on top of federal law. The state and federal laws are designed to be read and applied together, so that would would not change anything.

Again, my number one goal is that you are satisfied with my answer. If you are, I would greatly appreciate your "accept." If you still require further clarification, I am happy to continue assisting you.
Patrick, Esq., Lawyer
Satisfied Customers: 7655
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi again,

 

We operate fully under federal laws. Could you point me to the federal code that discusses wage garnishments?

 

Expert:  Patrick, Esq. replied 2 years ago.
Certainly. You would be interested in Title III of the Consumer Credit Protection Act, which you can read here: http://www.dol.gov/whd/regs/statutes/garn01.pdf

Very best regards.
Customer: replied 2 years ago.
There isn't any mention of a 15% max in that document. I need to prove to our legal department that we have withdrawn an excessive garnishment to the terminated employee. What would be the best piece of information to show them?
Expert:  Patrick, Esq. replied 2 years ago.
Assuming that an excessive garnishment was in fact taken, you would need to know what the garnishment rate was. As the employer, you would certainly be privy to that information. Whatever the wage garnishment percentage was, you would take that percent from the final paycheck, including vacation pay, after taxes.

The garnishment would be excessive if it exceeded the wage garnishment rate on disposable income for the final check.

I hope this helps.

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Patrick, Esq.
Patrick, Esq.
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Significant experience in all areas of employment law.