Caught in the Crossfire: Employers of Emolument Attachment Order Debtors and the Challenge to Achieve Proportionally Fair Wage Deductions

Abstract

To provide society with the benefit of an effective emolument attachment order (EAO) environment, several role-players must fulfil essential interconnected functions. The process relies on the cooperation of the garnishee (the employer of the EAO debtor), who is responsible for the periodic deductions from the employees' salary and the transfer of these funds to the creditor(s). Employers therefore carry an administrative burden to maintain the human resource capacity and administrative systems necessary to properly enforce EAOs. In addition to this administrative duty, employers are at risk of incurring personal liability vis a vis the creditor as well as the debtor. This article will highlight the risk to employers in the administration of EAOs, specifically arising from the legal uncertainty regarding proportionality in EAO deductions. The article describes the current legislative framework and its relevant frailty. It then delineates the scope of the study by exploring the concept of proportionality within the context of EAOs. This is followed with a summary of the relevant historic and contemporary context, before dealing with the prevailing EAO-related challenges. Although a detailed comparative analysis falls outside the scope of this article, it also contains a brief overview of how these challenges regarding proportionality in wage garnishment are managed in England and the United States of America. The contribution concludes with recommendations based on the research findings. Ultimately, the author submits that employers are currently more at risk from liability for the maladministration of their employees' EAOs than they may generally appreciate and that proactive steps should be taken to address the situation.