Georgia’s garnishment statute is unconstitutional, a federal judge in Atlanta has held in Strickland v. Alexander, No. 1:12-CV-02735-MHS (N.D. Ga. Sept. 8, 2015), putting the future of state garnishment cases in doubt.

U.S. District Judge Marvin H. Shoob found Georgia’s garnishment law to be flawed because it did not require creditors to notify debtors that certain monies or property, such as workers’ compensation benefits and Social Security benefits, are off limits to garnishments. Judge Shoob’s ruling also enjoined Gwinnett County, where the case arose, from issuing any garnishment summons.

Additionally, Fulton County’s Magistrate Court has issued a standing order to stay garnishment cases as of September 14, 2015, until further notice. Other county courts may follow suit. Therefore, until the Georgia Legislature addresses this issue, garnishment activity in Georgia may come to a standstill.

Background

The case came about after Tony Strickland’s bank account, holding his worker’s compensation settlement, was garnished in Gwinnett County by a credit card company. Certain monies or property, however, such as workers’ compensation benefits and Social Security benefits, by law, are off limits to garnishments. Strickland was not given notice or an opportunity to claim an exemption on the money in his account, including his workers’ compensation benefits, before the account was garnished. As a result of the improper garnishment, Strickland, who has cancer, was unable to undergo a needed surgery and seek medical treatment for 115 days.

Implications for Employers

Employers should continue to garnish, but only monies, such as wages, that are subject to garnishment, until instructed otherwise by a court. Employers who elect to stop all garnishment activity run the risk of falling into default.

Importantly, Georgia’s garnishment law provides a safe harbor to garnishees who make a good faith effort to comply with a summons of garnishment. O.C.G.A. § 18-4-92.1(b). As a garnishment action is ultimately a court order on the garnishee to garnish a defendant’s property, the garnishee or employer should continue to do so unless notified to the contrary by the court.