§ 282-A:152-a — Garnishment

New Hampshire § 282-A:152-a

• Jurisdiction: New Hampshire
• Title XXIII: LABOR
• Ch. 282-A: UNEMPLOYMENT COMPENSATION
• Subdivision: Collection of Contributions

Text

I. Definitions. In this section:
(a) "Commissioner" means commissioner of the department of employment security.
(b) "Date that the determination creating the overpayment becomes final" means the date a person has no appeal or appeal period pending under RSA 282-A:164, RSA 282-A:165, and RSA 282-A:42-68.
(c) "Department" means the department of employment security.
(d) "Disposable earnings" means that part of the earnings of any individual remaining after the deduction from those earnings of any amount required by law to be withheld or required by the employer to be withheld as a condition of employment.
(e) "Earnings" means any form of payment to a person for his or her labor including, but not limited to, salary, wages, commission, or other compensation.
(f) "Employer" means any person, business, organization, employing unit, firm, corporation, or association, or any political subdivision or department of the state or federal government, which employs a person or pays income or any other compensation to a person for his or her labor.
(g) "Individual debtor" means a person determined to have been overpaid under RSA 282-A:164, provided the department provided to such person notice of the determination that he or she was overpaid, provided an opportunity for appeal, and opportunities for appeal have been exhausted.
(h) "Notice of garnishment" means a notice requiring an employer to garnish an individual debtor's earnings without a court order.
(i) "Notice of court-ordered garnishment" means a notice requiring an employer to garnish an individual debtor's earnings based on a court order for payments.
II. Upon the failure of any individual debtor to pay any overpayment due to the state under RSA 282-A:164 within 90 days of the date that the determination creating the fraud overpayment becomes final, the department may serve duplicate notices of garnishment upon any employer that owes, or may owe in the future, earnings to such individual debtor. Any notice of garnishment served upon any employer shall be simultaneously served upon the individual debtor by first-class mail to his or her last known address. The department shall send the individual debtor by first-class mail to his or her last known address a notice of intent to garnish earnings 14 days before serving any notice of garnishment. No individual debtor shall be deemed under this section to have failed to pay any fraud overpayment due to the state within 90 days of the date that the determination creating the overpayment becomes final, if the debtor:
(a) Has agreed to a payment plan approved by the department; and
(b) Is in substantial compliance with such payment plan.
III. The notice of garnishment shall advise the individual debtor and individual debtor's employer:
(a) Of the employer's obligation to provide one of the duplicate copies of the notice of garnishment to the individual debtor upon receipt;
(b) Of the amount which may be garnished for any week;
(c) Of the total amount subject to garnishment;
(d) That the garnishment applies to any current or subsequent earnings paid 21 or more days after the date of mailing of the notice of garnishment;
(e) Of the individual debtor's right to file, at any time, for suspension of the notice of garnishment;
(f) That any amounts which the employer is obligated to withhold pursuant to RSA 458-B have priority over amounts subject to garnishment under this section;
(g) That, including any fee added and retained under paragraph VII, the amount garnished pursuant to this section when added to the amount withheld pursuant to RSA 458-B may not exceed 25 percent of the individual debtor's weekly disposable earnings, or the amount by which the individual debtor's weekly disposable earnings exceed 50 times the minimum hourly wage as established by the Fair Labor Standards Act, whichever is less;
(h) That the employer must implement garnishment no later than the first earnings that are paid 21 days after the notice was mailed;
(i) That the garnishment is binding upon the employer until payment in full is made of the total amount subject to garnishment;
(j) That the employer must send the garnished amount to the commissioner at the same time the individual debtor is paid;
(k) Of the provisions, liabilities, and penalties in paragraphs IV-IX; and
(l) Of the employer's right to add and retain a fee of $1.00 for each garnishment for the administrative cost incurred as a result of the garnishment procedures.
IV. With respect to the individual debtor's right to file for suspension of the notice of garnishment, the notice of garnishment shall state as follows, in at least 12-point type:
This notice of garnishment requires your employer to garnish (take) some of your earnings for work and send them to the department of employment security to repay overpaid unemployment insurance benefits. Once earnings for a week have been garnished, you will not be able to get them back.
You have the right, at any time, to file for suspension (stopping) of this garnishment. If you file for suspension of garnishment, the department of employment security has the right to take you to court to ask a judge to decide how much, if any, of your earnings should be garnished. Instead of going to court, you and the department may be able to agree to a different amount of garnishment. If you want to file for suspension or make an agreement with the department, you must call the department of employment security at _____________ .
V. The amount which may be garnished for each week shall be determined by the department based on the individual debtor's financial circumstances known to the department, including but not limited to the individual debtor's financial affidavit, if available.
VI. Garnishment under this section shall have priority over any other legal process under state law against the same earnings except withholding under RSA 458-B.
VII. In addition to the amount garnished under this section, the employer may add and retain a fee of $1.00 for each garnishment for the administrative cost incurred as a result of the garnishment procedures.
VIII. An employer shall:
(a) Provide one of the duplicate copies of the notice of garnishment to the individual debtor upon receipt;
(b) Apply the garnishment to any current or subsequent earnings paid 21 or more days after the date of issuance of the notice of garnishment;
(c) Not garnish for any week more than the amount allowed;
(d) Suspend garnishment of earnings paid not later than 8 days following receipt of notice from the department of the requirement to do so;
(e) Give priority to any amounts that the employer is obligated to withhold pursuant to RSA 458-B over amounts subject to garnishment under this section;
(f) Not allow the amount garnished pursuant to this section, including any fee added and retained under paragraph VII, when added to the amount withheld pursuant to RSA 458-B to exceed 25 percent of the individual debtor's weekly disposable earnings, or the amount by which the individual debtor's weekly disposable earnings exceed 50 times the minimum hourly wage as established by the Fair Labor Standards Act, whichever is less;
(g) Implement garnishment no later than the first payment of earnings that occurs 21 or more days after the notice was mailed;
(h) Treat the garnishment as binding upon the employer until payment in full is made of the total amount subject to garnishment;
(i) Send the garnished amount to the commissioner at the same time the individual debtor is paid;
(j) Notify the commissioner within 20 days of the individual debtor's termination of employment, and shall provide the individual debtor's last known address and the name and address of the present employer, if known.
(k) Be liable for the accumulated amount it should have garnished if it fails to garnish in accordance with the provisions of the notice.
IX. The employer shall be liable for an administrative fine of $100 per pay period for each individual debtor with respect to whom the employer has willfully failed to comply with the provisions of subparagraphs VIII(g) and VIII(j). For other willful violations of this section an administrative fine of not less than $100 or more than $500 may be imposed. Prior to assessing such fine against the employer, the commissioner shall notify the employer of its intent to assess the fine, the amount of the fine, the date by which the fine is payable, and shall provide the employer with the opportunity to appeal the imposition of the fine.
X. An employer shall be guilty of a misdemeanor and subject to a fine of up to $1,000:
(a) For discharging, refusing to employ, or taking any disciplinary action against an individual debtor because of the garnishment procedures.
(b) For failure to comply with the provisions of paragraph VIII.
XI. Notwithstanding the 90-day limitation in paragraph II an individual debtor may, subject to the approval of the department, agree to voluntary garnishment at any time.
XII. An individual debtor may file for suspension of the notice of garnishment at any time. If the individual debtor files for suspension of the notice of garnishment, the department may file a motion for periodic payments in the Merrimack county sixth Circuit court seeking establishment of an order for payments.
XIII. If an individual debtor files for suspension of the notice of garnishment, the department shall suspend the notice of garnishment and advise any employer upon which the notice of garnishment was served to suspend garnishment of earnings paid not later than 8 days following receipt of notice to suspend.
XIV. If an individual debtor who filed for suspension of the notice of garnishment and the department reach an agreement as to the amount which may be garnished for any week, the department may issue a new notice of garnishment consistent with such agreement.
XV. Following the expiration of 90 days after the date a determination which finds an individual debtor overpaid under RSA 282-A:164 becomes final, such determination with interest under RSA 282-A:141, shall be for purposes of RSA 524:6-a the judgment of any circuit court-district division in which the department files a motion for periodic payments.
XVI. Following the issuance of an order for payments by any circuit court-district division on any overpayment due to the state under RSA 282-A:164 for more than 90 days, the department may serve a notice of court-ordered garnishment upon any employer that owes, or may owe in the future, earnings to such individual debtor. Any notice of court-ordered garnishment served upon any employer shall be simultaneously served upon the individual debtor by certified mail to his or her last known address. The amount which may be garnished for any week shall not exceed that amount, applied weekly, deemed appropriate by the circuit court-district division in its order for payments.
XVII. The notice of court-ordered garnishment shall advise the individual debtor and individual debtor's employer:
(a) Of the information required by III(a)-(d) and (f)-(l) of this section; and
(b) Of the individual debtor's right to file a motion with the Merrimack county sixth circuit court seeking a change in the amount of the payments based on a change in financial circumstances;
XVIII. With respect to the individual debtor's right to file a motion with the Merrimack county sixth circuit court, the notice of court-ordered garnishment shall state as follows, in at least 12-point type:
This notice of court-ordered garnishment requires your employer to garnish (take) some of your earnings for work and send them to the department of employment security to repay overpaid unemployment insurance benefits. The amount of the garnishment is based on an order of the Merrimack county sixth circuit court. Once earnings for a week have been garnished, you will not be able to get them back.
You have the right, at any time, to file a motion with the Merrimack county sixth circuit court asking for the amount of the garnishment to be changed based on a change in your financial circumstances. If you want to file a motion, you should contact the Merrimack county sixth circuit court. Nothing in this paragraph prevents you and the department of employment security from agreeing to a greater or lesser amount of garnishment and filing the agreement with the Merrimack county sixth circuit court. If the department of employment security does not agree, you still have the right to file a motion.
XIX. The department may agree to a greater or lesser periodic amount than that amount deemed appropriate by the Merrimack county sixth circuit court in its order for payments, whether or not the individual debtor has requested a hearing before the court to obtain a change in the court's order, and any such agreement shall be filed with the Merrimack county sixth circuit court.
XX. Within 7 days of receiving written notice that the individual debtor has filed a motion to request a change in the court's order, the department shall suspend or modify its notice of court-ordered garnishment consistent with the individual's request to the court.

Legislative History

2012, 176:1, eff. Aug. 10, 2012.