California Code of Regulations › Title 22 - Social Security › Division 1 - Employment Development Department › Subdivision 1 - Director of Employment Development › Division 1 - Unemployment and Disability Compensation › Part 1 - Unemployment Compensation › Chapter 5 - UNEMPLOYMENT COMPENSATION BENEFITS › Article 1 - ELIGIBILITY AND DISQUALIFICATIONS › Section 1256-35 - Discharge for Misconduct -Garnishment of Wages

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
An employee's discharge due to the garnishment of his
							 or her wages causing a disruption to or a burden on the employer is a discharge
							 for misconduct if all of the following conditions are met:
(a) The employee's wages have been previously
						  garnisheed for a different judgment on a different debt while employed by the
						  discharging employer.
(b) The
						  employee has been expressly forewarned by the employer's rules, prior warnings,
						  or prior reprimands, of the possible action to be taken by the employer
						  resulting from a writ of garnishment for a different judgment.
(c) The employee knew or could reasonably
						  know that a wage garnishment would be instituted for a different judgment by a
						  creditor.
(d) The employee has not
						  made a good-faith effort to meet his or her financial obligations or the
						  employee has made a good-faith effort to meet obligations but failed to take
						  reasonable action that would have prevented the garnishment for a different
						  judgment.
COMMENTS. Subdivision (a) recognizes that a claimant
							 cannot be lawfully discharged under state or federal law if the garnishment
							 results from a single judgment or indebtedness (Labor Code Section
							 2929;
							 15 U.S.C.
							 1674). Thus, a discharge because of one or
							 more garnishments on a single debt or judgment is not for misconduct. However,
							 when a claimant has had wages attached for two or more debts, the specific
							 facts leading to the discharge are determinative on whether the discharge was
							 for misconduct.
Under subdivision (b), unless a claimant has been
							 expressly forewarned by the employer of the possible action the employer may
							 take resulting from a wage garnishment, the discharge is not for misconduct.
							 The employer's rules or any prior warnings or reprimands show that the claimant
							 was aware of the possible discharge resulting from a wage garnishment. If there
							 is no such forewarning, the discharge is not for misconduct, since there is no
							 willful or wanton disregard of the employer's interests.
EXAMPLE 1. A is separated from employment with X.
							 While unemployed a writ of attachment is filed against A with X. Upon returning
							 to work, A is not informed of the attempted garnishment and is rehired by X.
							 Another creditor executes a writ of attachment with X on A and X discharges
							 A.
A's discharge is not for misconduct since A's action
							 was not willful because A was not aware of X's policy or rules on wage
							 garnishments and had not been warned that A would be discharged if repeated
							 garnishments occurred.
COMMENTS. Under subdivision (c), a claimant must know
							 or be charged with reasonable knowledge that a garnishment could be instituted
							 against him or her. This knowledge is generally acquired when a debt has been
							 incurred and the creditor has sought payment from the claimant.
EXAMPLE 2. B is employed by Y. After a prior
							 garnishment for another debt of B's, a writ of attachment is executed by a
							 collection agency for unpaid attorney's fees. Y discharges B. B claims that B
							 had the understanding that B's spouse would liquidate this debt. B's discharge
							 cannot be for misconduct since B could not reasonably know that a writ of
							 attachment could be instituted against B and did not act willfully.
COMMENTS. Under subdivision (d), if a discharged
							 claimant tries in good faith to meet his or her financial obligations and
							 succeeding garnishments for a different debt still result from circumstances
							 the claimant cannot prevent by any reasonable action or conduct, the discharge
							 is not for misconduct. No misconduct would exist if an impatient creditor
							 resorted to garnishment, or if the claimant was financially unable to pay or
							 make satisfactory arrangements despite his or her best efforts. However, if the
							 claimant fails to stop garnishment when reasonable action would have prevented
							 garnishment, a discharge is for misconduct.
The nature of the purchase resulting in the
							 garnishment is rarely significant in determining misconduct. The fact that a
							 garnishment stemmed from the purchase of a luxury item does not usually
							 establish misconduct. However, if a claimant has had several garnishments, has
							 been warned that another garnishment for a different judgment can result in
							 discharge, and still creates a frivolous new debt which results in garnishment,
							 the claimant's actions are not those of a reasonably prudent person who wants
							 to preserve employment. Reasonable conduct by the claimant would have prevented
							 the garnishment.
EXAMPLE 3. C makes arrangements to pay C's creditors
							 but a succeeding wage attachment for a different debt is nevertheless levied by
							 an impatient creditor who had agreed to the arrangements.
C's discharge resulting from this garnishment is not
							 for misconduct since C made good-faith efforts but could not prevent the
							 garnishment.
EXAMPLE 4. D suffers a substantial loss of income,
							 such as a wage cut, demotion, new job paying less money, or loss of outside
							 income. D after prior garnishments fails to keep up with reduced
							 payments.
D's discharge for garnishment on a different debt
							 does not constitute misconduct if D has explained the situation to the
							 creditors, tried to make satisfactory arrangements, and cannot prevent further
							 garnishments by any reasonable steps.
EXAMPLE 5. E is unable to meet debts due to a serious
							 family illness requiring a large financial outlay. Creditors decide to levy
							 wage garnishments on separate judgments despite E's attempts to make
							 satisfactory arrangements. E is discharged.
E's discharge is not for misconduct since no
							 reasonable action could have prevented the garnishments.
EXAMPLE 6. F has been warned by Employer Z on several
							 occasions that continued wage attachments on different debts would result in
							 discharge or other disciplinary action. During a period of six months, four
							 writs of attachment had been served on Z, and two wage assignments were made.
							 At least twice, F took time off from work to arrange to have F's wages
							 released. F had repeatedly obtained an immediate release of F's wages by paying
							 the amounts due. F is able to make timely payments. Z finally warns F that
							 another attachment will result in discharge. Upon service of the next
							 attachment, Z discharges F.
F is disqualified for misconduct based on F's
							 awareness of the existence of F's indebtedness and the possibility that the
							 creditors would take steps to insure collection. F was able to pay and could
							 obtain immediate release of F's wages by making arrangements with the
							 creditors. F could have prevented the garnishment by reasonable
							 action.
1. New
							 section filed 4-18-80; effective thirtieth day thereafter (Register 80, No.
							 16).
2. Amendment of subsection (a) filed 1-28-82; effective
							 thirtieth day thereafter (Register 82, No. 5).
Note: Authority cited: Sections
								305
								and
								306,
								Unemployment Insurance Code. Reference: Section
								1256,
								Unemployment Insurance Code.