When Wage Garnishment Doesn't Work, Look to the Employer

Tampa, FLThe unfortunate fallout that comes with the failure of a union where children are involved will more often than not include a provision for child support to the mother, on the part of the father. Also, more often than not, payment of child support falls to the court, which institutes wage garnishment with the father's employer, to ensure funds owed to the mother for care of the matrimonial children, is guaranteed.

In other words, before the father sees a dime of his paycheck, the amount representing child support, as so ordered by the court, is taken off first.

The garnishment protocol depends on a garnishee's employer undertaking the correct calculation, as required by law, in order to achieve the required amount to be withheld as authorized by the Income Deduction Order (IDO).

Sometimes, this doesn't happen—as so evidenced by an employment lawsuit against the operator of an Outback Steakhouse location in Florida.

In the case of Klara Sperry-Ohall v. OSI Restaurant Partners LLC, the required amount of wages to be withheld from the former partner of the plaintiff—an employee at the Outback facility—was well below the ordered amount, the lawsuit alleged, due to a miscalculation on the part of the defendant.

According to the employment lawsuit, Daniel Sperry was employed as a waiter / server at the restaurant. As such, he was paid a low hourly wage, at the time, of $4.65. This figure is somewhat less than minimum wage required under federal law, but is allowable in the restaurant industry in light of an expectation for the earning of tips and gratuities, which makes up the difference.

According to the text of the lawsuit, the amount represented by an IDO is to be deducted from the full and complete hourly compensation of an employee—after taxes and with the inclusion of tips and gratuities.

The lawsuit brought by Sperry's former partner against the operator of the Outback Steakhouse facility in Florida, accuses Outback of improperly calculating Sperry's wages according to the requirements of the garnishment order. While Outback, according to the lawsuit, duly calculated and paid the correct amount of federal tax based on Sperry's hourly wage including all tips and gratuities, the IDO requirement that all remaining wages after tax and including tips are eligible for deduction up to 65 percent of total wages in order to achieve the required wage garnishment, was found to be lacking—in this case, a deduction of less than $200 per month for the required child support payment v. $864 per month as required by the IDO.

Outback is accused of calculating Sperry's income for the purposes of wage garnishment based on his hourly wage less tips. The latter—tips and gratuities—are tracked through a central point-of-sale (POS) system given the propensity for most patrons to include tips as part of a credit card or debit payment. The defendant uses this system, the lawsuit alleges, to properly and accurately calculate federal tax owed on behalf of Sperry, but failed to deduct the correct, mandated IDO amount due to the alleged miscalculation.

The lawsuit made the observation that once tips are calculated through the POS system, they are paid to the server in cash at the end of each shift. To wit, the employer could not garnishee all of Sperry's wages for the purposes of the IDO, due to the fact Sperry already had part of his wage, in cash, at the end of each night. Presumably, to fulfill the IDO as so ordered, the employer would have had to pursue Sperry for the difference, out of wages he already had in his possession.

The statute that allows for income deduction orders was designed to provide financial protection for mothers of minor children from so-called 'dead-beat dads' attempting to escape payment of child support. Wage garnishment remains an effective means of achieving this end, given the requirement for an employer to deduct the necessary IDO amount from an employee's pay packet, prior to issuing that pay packet to the employee.

This assumes the employer is undertaking the correct calculations—and the employer has a certain liability to that end. According to the wage garnishment lawsuit the child support deduction order, in compliance with Florida Statute Section 61.1301(2)(e)(5) states, concerning enforcement, the following:

"Your liability: If you do not take out the right amount of money from the obligor's wages/income you are liable for the amount you should have kept out, plus costs, interest and reasonable attorney's fees."

Plaintiff Sperry-Ohall is seeking damages in excess of $15,000 in her employment lawsuit, plus legal fees and court costs, and has elected trial by jury.