Wage garnishment is when a creditor or debt collector has a person’s employer take up to 10% of a person’s gross wages or salary from their paycheck in order to pay it to the creditor to whom the person owes a debt.
New York has special terminology for wage garnishment and refers to it as “income execution.” Technically, “Income execution” is an order from a court or a government agency that requires an individual’s employer to withhold a certain amount of money from the individual’s paycheck so that it can be turned over to a creditor to pay a debt of the individual.
The creditor can never take an individual’s entire paycheck. It can garnish the lesser of 10% of the individual’s gross wages or 25% of their disposable income to the extent that this amount exceeds 30 times the federal or state minimum wage (whichever is greater). If an individual’s income after deductions for taxes and the like is less than 30 times the minimum wage, it cannot be garnished at all.
Among the types of debt that can support wage garnishment are unsecured debt, e.g., credit card debt, unpaid child support and tax debt. Garnishment may also involve deducting money from a paycheck or bank account, but that would be a procedure that is separate from wage garnishment.
In order to garnish an individual’s wages or salary, the creditor or debt collector must first go to court and obtain a judgment against the individual that acknowledges their legal obligation to pay back a certain amount of money owed to the creditor. A legal consultation in New York with a New York lawyer would give an individual the opportunity to learn how creditors can use garnishment to collect their debts.
However, some creditors do not have to file a lawsuit in order to get a court order for wage garnishment. For example, a creditor to whom a debtor owes unpaid income taxes, federal student loans, child support, or alimony does not have to file a lawsuit to get a judgment and a wage garnishment order.
By law, a person’s employer cannot fire a person for a single wage garnishment. Also, certain types of income cannot be garnished, e.g., Social Security benefits, disability benefits, and unemployment benefits.
When Is a Creditor Allowed to Garnish My Wages in New York?
As noted above, some creditors do not have to file a lawsuit and get a court order for wage garnishment. For example, a creditor to whom a debtor owes income taxes, federal student loans, child support, or alimony does not have to file a lawsuit to get a judgment and a wage garnishment order.
In New York, all court orders for child support include an automatic income withholding order. The other parent can also get a wage garnishment order from a court if the paying parent defaults on their payments and the court order does not include an automatic income withholding order.
If an individual is behind on their federal student loan payments, the U.S. Department of Education can garnish up to 15% of the individual’s pay. The individual is allowed to hold back from garnishment an amount that equals 30 times the current federal minimum wage per week.
What Is Wrongful Wage Garnishment in New York?
If an employer were to garnish an employee’s paycheck, the garnishment would be wrongful if the employer were to do it absent a court order that directs them to do it. Of course, this is in cases in which a court order is required. As noted above, it is not required in all cases.
Garnishment would be wrongful if the amount to be garnished were to be calculated incorrectly. An employer’s garnishment would also be wrongful if the debts owed by the employee were to be of the type that cannot be collected through garnishment or through any kind of debt collection.
An employer must notify an employee before they garnish their wages or salary. Failure to do so would make a garnishment wrongful.
Does the Wage Garnishment Have To Be Done With Malice?
Malice in the context of wage garnishment would be such actions as the following:
- Garnishing an employee’s wages absent a valid court order when a valid court order is required. As noted above, garnishment to collect certain loans does not require a court order. But other garnishments do require a court order and if the employer who garnishes an employee’s salary does not have one, that might constitute malice
- Misrepresentation of the fact that a person owes a debt if in fact they do not
- Failure to follow required legal procedures in situations in which certain procedures are required before garnishment can be done
- The use of intimidation or harassment by an employer or a debtor to coerce a debtor into paying a debt.
A wage garnishment does not have to involve malice. In fact, actions such as those listed above are unlawful, and a debtor who is subject to such actions could take legal action to stop them and possibly to seek damages.
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Can I Stop a Wage Garnishment by Telling My Employer It Is a Wrongful Garnishment?
If a working person cannot pay for their family’s basic needs after their wages are garnished, they may file a “Claim of Exemption.” Of course, before filing a Claim of Exemption, an employee would want to discuss the issue with their employer, who might be willing to make adjustments without going to court.
A Claim of Exemption basically asks to lower the amount being taken out of the person’s paycheck. The employee would then deliver their claim to the Levying Officer. The Levying Officer is identified on the wage garnishment order, the “Earnings Withholding Order.” This is usually the sheriff. It may or may not be the local sheriff in the county in which an individual lives.
The sheriff would forward the Claim documents to the debt collector or creditor. The creditor or debt collector then has a set time in which to answer. If they do not file a response with the court, then the Claim of Exemption would be granted.
If it is granted, then the sheriff would tell the employer either to stop the garnishment entirely or to reduce the amount. If the relief is a reduction in the amount of the garnishment, then the sheriff would also order the employer or creditor to return any extra money that was garnished after the employee filed their Claim of Exemption.
If the creditor or debt collector opposes the Claim of Exemption, there would be a hearing on the Claim before a judge who would decide whether or not to grant it after the hearing.
If the garnishor does oppose the Claim of Exemption, the employee should review it carefully and then prepare to respond to it. This would mean gathering up evidence that supports the Claim to present to the court. The employee then wants to be sure to attend the hearing and present their evidence to the judge.
A larger exemption is possible if the debtor can show that they need it. Under New York law, an amount of the employee’s earnings which they prove is necessary for the support of the employee or their family which is supported wholly or partly by the employee is exempt from garnishment.
Should I Talk to a Lawyer About Stopping My Wrongful Wage Garnishment in New York?
If your pay is being garnished, you want to talk to a New York financial lawyer. Your lawyer can review the facts of your garnishment and tell you whether the garnishment is fully legal or whether it can be challenged. Your lawyer would also be able to reach out to the creditor to whom you owe money and possibly arrange a payment schedule that would work better for you than garnishment.
Jose Rivera
Managing Editor
Editor
Last Updated: Jul 17, 2025