BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                            2015 - 2016  Regular  Session


          SB 501 (Wieckowski)
          Version: April 28, 2015
          Hearing Date:  May 12, 2015
          Fiscal: No
          Urgency: No
          TMW
                    

                                        SUBJECT
                                           
                            Wage garnishment restrictions

                                     DESCRIPTION  

          This bill would reduce the maximum amount of disposable earnings  
          subject to wage garnishment from 25 to 10 percent of the  
          individual's disposable earnings for that week or one-third of  
          the amount by which the individual's disposable earnings for  
          that week exceed 40 times the state minimum hourly wage.  This  
          bill would provide that if a judgment debtor works in a location  
          where the local minimum hourly wage is greater than the state  
          minimum hourly wage, the local minimum hourly wage in effect at  
          the time the earnings are payable would be the amount upon which  
          to base the maximum amount of wage garnishment.  This bill, for  
          any pay period other than weekly, would base the maximum amount  
          of disposable earnings subject to levy on the applicable local  
          hourly minimum wage rather than the state hourly minimum wage.

                                      BACKGROUND 

          In California, under the Wage Garnishment Law, a judgment  
          creditor can seek garnishment of a judgment debtor's wages to  
          satisfy a court judgment.  When wages are garnished, the  
          employer withholds money from the debtor employee's paycheck and  
          sends the money to the creditor.  The Wage Garnishment Law  
          provides for exemptions from wage garnishment, such as for  
          necessities for living and child support.

          AB 1775 (Wieckowski, Chapter 474, Statutes of 2012) codified the  
          definition under the federal Consumer Credit Protection Act for  








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          "disposable earnings" and the maximum amount of weekly wage  
          garnishment of 25 percent of the individual's disposable  
          earnings.  AB 1775 also capped the weekly wage garnishment  
          amount at 40 times the state minimum hourly wage and provided  
          certain multipliers to determine a maximum amount subject to  
          levy for pay periods other than weekly.

          This bill would further reduce the maximum amount of disposable  
          earnings subject to wage garnishment from 25 to 10 percent of  
          the individual's disposable earnings for that week or one-third  
          of the amount by which the individual's disposable earnings for  
          that week exceed 40 times the state minimum hourly wage, as  
          specified.  This bill, for any pay period other than weekly,  
          would base the maximum amount of disposable earnings subject to  
          levy on the applicable local hourly minimum wage rather than the  
          state hourly minimum wage.

                                CHANGES TO EXISTING LAW
           
           Existing law  , the Wage Garnishment Law, establishes procedures  
          regarding the garnishment of a judgment debtor's wages.  (Code  
          Civ. Proc. Sec. 706.010 et seq.)
           
            Existing law  provides that "disposable earnings" means the  
          portion of an individual's earnings that remains after deducting  
          all amounts required to be withheld by law.  (Code Civ. Proc.  
          Sec. 706.011(a).)  

          Existing law  provides that "earnings" means compensation payable  
          by an employer to an employee for personal services performed by  
          such employee, whether denominated as wages, salary, commission,  
          bonus, or otherwise.  (Code Civ. Proc. Sec. 706.011(b).)

           Existing law  restricts the amount of garnishment of a judgment  
          debtor's disposable earnings for any workweek to the lesser of  
          25 percent of the individual's disposable earnings for that week  
          or the amount by which the individual's disposable earnings for  
          that week exceed 40 times the state minimum hourly wage in  
          effect at the time the earnings are payable.  (Code Civ. Proc.  
          Sec. 706.050(a).)

           Existing law  requires that for any pay period other than weekly,  
          the following multipliers are to be used to determine the  
          maximum amount of disposable earnings subject to levy under an  
          earnings withholding order that is proportional in effect to the  







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          weekly calculation, as specified:
           for a daily pay period, the amounts shall be identical to the  
            weekly garnishment amounts;
           for a biweekly pay period, multiply the state hourly minimum  
            wage by 80 work hours;
           for a semimonthly pay period, multiply the state hourly  
            minimum wage by 862/3 work hours; or
           for a monthly pay period, multiply the state hourly minimum  
            wage by 1731/3 work hours.  (Code Civ. Proc. Sec. 706.050(b).)
          
           Existing law , on and after July 1, 2014, requires the minimum  
          wage for all industries to be no less than $9.00 per hour, and  
          on and after January 1, 2016, the minimum wage for all  
          industries to be not be less than $10.00 per hour.
           
            This bill  would reduce the maximum of disposable earnings  
          subject to levy from 25 to 10 percent of the individual's  
          disposable earnings for that week or one-third of the amount by  
          which the individual's disposable earnings for that week exceed  
          40 times the state minimum hourly wage.

           This bill  would provide that if a judgment debtor works in a  
          location where the local minimum hourly wage is greater than the  
          state minimum hourly wage, the local minimum hourly wage in  
          effect at the time the earnings are payable shall be used for  
          the above calculation.

           This bill  for any pay period other than weekly, would base the  
          maximum amount of disposable earnings subject to levy on the  
          applicable hourly minimum wage rather than the state hourly  
          minimum wage. 

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
            
            No one should experience poverty, especially people who work.   
            When they do, it is essential we do what we can to prevent  
            hardships for workers and their families.  SB 501 will improve  
            the ability of low-wage working families to meet their basic  
            needs by remedying two problems with current wage garnishment  
            law:  1) The disincentive for a worker facing a garnishment to  
            earn more than the local minimum wage, and; 2)  The unjustly  







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            high percentage of income taken from a worker's paycheck.

          2.  Increasing amount of disposable earnings exempt from  
            garnishment  

          Existing law restricts the amount of disposable earnings of a  
          judgment debtor that may be garnished for any workweek to the  
          lesser of 25 percent of the judgment debtor's disposable  
          earnings for that week or the amount by which the judgment  
          debtor's disposable earnings for that week exceed 40 times the  
          state minimum hourly wage, whichever is less.  (Code Civ. Proc.  
          Sec. 706.050.)  This bill would, instead, cap those amounts at  
          10 percent of the judgment debtor's disposable earnings for that  
          week or one third the amount by which the judgment debtor's  
          disposable earnings for that week exceed 40 times the state  
          minimum hourly wage.  This bill would also specify that the  
          local minimum hourly wage, if higher than the state hourly  
          minimum wage, should be used for this calculation.

          The author argues that "California law requires the garnishment  
          amount be the lesser of the following: (a) 25 [percent] of the  
          individual's post-tax earnings, or (b) any income that exceeds  
          the state minimum wage.  The perverse result of this formula is  
          that a worker who earns $10, $11, or $12 an hour only takes home  
          the state minimum wage of $9 and the rest of it is garnished -  
          all of it.  This is the case even when a worker lives in a  
          community that has voted for and enacted a higher minimum wage,  
          thus undermining local decisions and local economies."

          The East Bay Community Law Center, co-sponsor, states that  
          "[c]urrent wage garnishment laws place immense pressure on  
          low-income individuals.  With recent increases in the cost of  
          living in California, it is harder than ever for low-income  
          individuals to get by.  Clients who come to our office, even  
          before garnishment, barely have enough to pay for housing, food,  
          transportation to work, and basic utilities.  To keep their  
          heads above water, our clients will creatively juggle bills,  
          making payments on the most necessary items.  But this is a  
          precarious balancing act that falls apart when a creditor starts  
          taking out 25 percent of a person's wages.  At that point[,]  
          there simply is not enough money to go around.  Many people are  
          forced to turn to stopgaps, often taking out more debt from  
          exploitative payday or title lenders."  Further, the Western  
          Center on Law & Poverty (WCLP), co-sponsor, notes that  
          researchers have found that individuals whose wages are being  







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          garnished are living below the California Poverty Measure.  WCLP  
          argues that "[b]y allowing wage garnishment for a wider range of  
          debt than other states, California undermines the value of work,  
          especially considering the high cost of living in the state.   
          When low-income workers' wages are garnished, they often face  
          more severe cutbacks, losing their assets and falling into  
          further debt to credit card companies or predatory lenders.  As  
          a result, workers are more likely to remove themselves from the  
          job market or to file for bankruptcy if they are unable to meet  
          their basic needs through working.  This undermining of work  
          also reduces the wages earned by low-income workers that is  
          spent in the local community and saved for future emergencies;  
          ironically, increasing the likelihood that they will need to  
          loan again and reducing their ability to pay back old debt."

          California is the fifth most expensive state in which to live  
          and is the location of four of the top ten most expensive cities  
          in the United States.  Yet, as noted by the author, more than  
          half of other states have greater protections for judgment  
          debtors, and provide varying exemptions from garnishment so that  
          the judgment debtors do not go into greater debt trying to  
          sustain themselves and their families while paying for the  
          judgment.  Pennsylvania, Texas, North Carolina, and South  
          Carolina do not allow wage garnishment for consumer debts.  The  
          following states permit varying levels of garnishment, which are  
          lower than California:  New York permits only 10 percent  
          garnishment of gross earnings; Delaware, 15 percent; and  
          Illinois, 15 percent.  Illinois protects earnings up to 45 times  
          the federal minimum wage, which amounts to $326.00 per week  
          protected from garnishment.

          The Public Law Center, in support, states that "[t]he changes  
          proposed by SB 501 would make a significant difference in the  
          lives of our low-income clients.  Our clients will benefit from  
          the added protection of capping the garnishment at 10 [percent]  
          of weekly disposable earnings or one third of the amount the  
          earnings exceed the relevant minimum wage.  Instead of having to  
          make choices between food, rent and utilities, or clients may be  
          able to survive by clipping a few extra coupons or creatively  
          reducing utility bills."  This bill, by raising the amount of  
          disposable income that would be exempt from garnishment, would  
          provide judgment debtors a better chance at sustaining  
          themselves and their families while paying on a judgment.

          3.  Oppositions' concerns  







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          A coalition of creditor stakeholders, in opposition, contends  
          that this bill drastically reduces the ability of judgment  
          creditors to recover on valid, court-issued judgments, and may  
          result in harming the very consumers this bill is trying to  
          protect.  The coalition argues that the amount a creditor can  
          garnish is severely limited by law and there are robust  
          exemptions for certain categories of income making this bill  
          unnecessary since California debtors can already file a claim of  
          exemption to reduce the amount withheld in a wage garnishment,  
          and those claims are commonly granted.  The coalition asserts  
          that this bill will result in higher administrative costs (a $12  
          assessment is charged to the debtor for each disbursement under  
          a writ of attachment) the debtors will have to pay, which costs  
          could total $624 over the course of a year, and this bill would  
          have little or no impact on the already declining bankruptcy  
          rate.  The coalition also argues that the new layer of  
          complexity to calculate exemptions from wage garnishment will  
          unnecessarily burden employers and sheriffs' offices that  
          process garnishments.

          Further, the coalition states that the proposed rate cap in this  
          bill is substantially more restrictive than the cap in New York  
          because the New York cap is the lesser of 25 percent of  
          disposable income or 10 percent of gross income, not 10 percent  
          of disposable wages as proposed in this bill.  The coalition  
          also notes that, although a few states do not allow wage  
          garnishment of any kind, those states provide judgment creditors  
          with other remedies that are less favorable to consumers.  The  
          coalition also asserts that this bill will create an imbalance  
          that will be detrimental to the vast majority of consumers who  
          are fiscally responsible by placing more restrictions on the  
          collection of validly owned debt, which, in turn, causes the  
          availability of credit to decrease while increasing the cost of  
          credit.  Finally, the coalition notes that the Consumer  
          Financial Protection Bureau (CFPB) is currently engaged in a  
          broad rulemaking of debt collection that will likely cover  
          almost every aspect of the industry, and the coalition requests  
          that the Legislature wait to make significant changes to  
          collectors' ability to recover on judgments until the CFPB has  
          issued its rules.

          One attorney, Harvey R. Wolf, in opposition, argues this bill  
          should be amended to create a sliding scale (i.e., 10 percent,  
          15 percent, 20 percent, etc., of disposable incomes) to account  







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          for varying levels of income, as well as account for a debtor  
          having multiple jobs.
          
           Support  :  Bay Area Legal Aid; California Labor Federation,  
          AFL-CIO; California Reinvestment Coalition; California Rural  
          Legal Assistance Foundation; Consumer Federation of California;  
          Public Law Center; Consumers Union; Service Employees  
          International Union California; Western Regional Advocacy  
          Project

           Opposition  :  California Association of Collectors; California  
          Bankers Association; California Chamber of Commerce; California  
          Creditors Bar Association; California Retailers Association; DBA  
          International; Encore Capital Group; PRA Group; San Diego  
          Regional Chamber of Commerce; one individual

                                        HISTORY
           
           Source  :  East Bay Community Law Center; Western Center on Law &  
          Poverty

           Related Pending Legislation  :  None Known

           Prior Legislation  :  

          AB 1775 (Wieckowski, Chapter 474, Statutes of 2012) See  
          Background.

          AB 1388 (Wieckowski, Chapter 694, Statutes of 2011) deleted the  
          exception from the wage garnishment exemption for common  
          necessaries of life and instead provided an exception for wages  
          necessary for the support of the judgment debtor and his or her  
          family.  AB 1388 also added the exception for debt incurred  
          pursuant to an order or award for the payment of attorney's fees  
          under specified sections of the Family Code.

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