Placing an attachment on the wages of a debtor who earns a regular income is among the most functional methods of securing recovery in enforcement practice. The salary, wages and similar payments received from his employer by a person against whom enforcement proceedings have become final may, at the creditor’s request, be attached within the framework drawn by the Enforcement and Bankruptcy Act.
What is striking in this process is the position of the employer. Although the employer is not a party to the debt relationship that is the subject of the proceedings, it is placed at the centre of the process by reason of the specific duties that the law of enforcement imposes on it. Responding in proper form to the salary attachment notice served on it, deducting from the employee’s wages at the rate prescribed by law, and transferring the amount deducted to the enforcement file without delay are among the employer’s principal duties.
Where these duties are neglected, the picture changes rapidly: the employer may become liable out of its own assets for the amount that ought to have been deducted, and the creditor may make the employer the direct addressee of enforcement proceedings. Below we examine, in a practice-oriented manner, the scope of salary attachment, the rates of deduction, the privileged position of maintenance claims and the consequences of a breach of the employer’s obligations.
The Legal Definition and Scope of Salary Attachment
Salary attachment denotes the attachment, at the creditor’s request, through the enforcement office and within statutory limits, of the wages, salary, bonuses, premiums and similar items paid by his employer to the debtor in enforcement proceedings that have become final.
Article 83 of the Enforcement and Bankruptcy Act lays down a threshold in respect of salaries, allowances, retirement pensions and other income of a continuing nature: only the part of that income remaining after the amount regarded as necessary for the subsistence of the debtor and his family has been set aside may be made subject to attachment. By this provision the legislature has sought to strike a balance between the creditor’s interest in recovery and the protection of the debtor’s minimum standard of living.
Enforcement and Bankruptcy Act No. 2004, Art. 83
"Salaries, allowances and wages of every kind, usufructuary rights and the yield thereof, maintenance not based on a judgment, retirement pensions, and annuities allotted by insurers or retirement funds may be attached after deduction of the amount assessed as necessary by the enforcement officer for the subsistence of the debtor and his family."
Wage Items That May Be Attached
A significant part of the payments made to an employee by his employer that are in the nature of wages or of a supplement to wages falls within the scope of salary attachment. The principal income items subjected to deduction in practice are as follows:
- Payments made under the name of a bonus
- Amounts paid in return for overtime
- Premium payments
- Monthly net wages
- Travel and meal allowances where these are paid in cash
- Additional payments calculated on the basis of performance
The rule in respect of these items is that one fourth of the amount is deducted and transferred to the enforcement file. Maintenance claims may, however, fall outside this rule; depending on the type of maintenance, deduction at a higher rate is possible.
Severance pay and similar payments. Since notice pay, severance pay, the payment made in lieu of unused annual leave and trade union compensation are not regarded as wages, the one-quarter limit specific to salary attachment does not apply to these items. The whole of the payments in question may be made subject to attachment.
Income Left Outside the Scope of Attachment
Certain payments have been placed entirely beyond the reach of attachment by the legislature with a view to securing the essential subsistence of the debtor and his family. Under Article 82(11) of the Enforcement and Bankruptcy Act, salary attachment may not be applied to the following items:
- Unemployment benefit
- Short-time working allowance
- Compensation paid by reason of occupational disease or an occupational accident
- Sums of compensation awarded by a court decision on account of an occupational accident
- Temporary incapacity benefit
The common feature of the payments listed is that they are directed at meeting the essential and minimum subsistence of the employee and his family; by reason of that function they are closed to attachment. Maintenance claims constitute an exception here too; where a maintenance debt is in issue, deduction may be made from this income as well.
For the full range of asset values falling outside attachment, reference may be made to our note entitled Assets Exempt from Attachment.
The Rate of Deduction to Be Applied in Salary Attachment
The rate to be applied when an attachment is placed on the debtor’s wages is found by assessing the provisions of the Enforcement and Bankruptcy Act together with those of the Labour Act. For that reason the rate is not the only matter to be considered in salary attachment; which part of the wages is open to attachment and which upper limit may not be exceeded are also decisive.
The Portion That Cannot Be Attached and the Lower Limit
Article 83 of the Enforcement and Bankruptcy Act leaves open to attachment not the whole of income of a continuing nature such as salaries and wages, but the part remaining after deduction of the amount set aside for the subsistence of the debtor and his family. The purpose of the provision is to protect the debtor’s minimum living conditions even under the pressure of enforcement.
Enforcement and Bankruptcy Act No. 2004, Art. 83(2)
"However, the amount to be attached may not be less than one fourth thereof."
Consistently with that provision, Article 35 of the Labour Act No. 4857 has likewise fixed the upper limit expressly and has laid down that an attachment exceeding one fourth of the employee’s wages is not possible.
Labour Act No. 4857, Art. 35
"No more than one fourth of the monthly wages of employees may be attached…"
Read together, the two provisions leave the employer’s room for manoeuvre clear: not only may the statutory rate not be exceeded, but making a deduction below that rate may also give rise to the employer’s legal liability.
Attachment for a Maintenance Debt and the Difference in Rate
The Privileged Position of Maintenance Claims
Maintenance claims have been placed in a priority position in the application of salary attachment. By virtue of that privilege it is possible, in respect of maintenance, to attach more than one fourth of the employee’s wages. The rationale of the provision is the protection of those whom the debtor is under a duty to support.
That said, where maintenance is in issue a critical distinction must be drawn:
- The law prescribes no ceiling in respect of current (monthly) maintenance. Even if the monthly maintenance awarded exceeds one fourth of the wages, the whole of the amount is deducted and sent to the enforcement file.
- Maintenance debts accrued in respect of past periods, by contrast, are treated as ordinary claims. For this item the general regime of salary attachment operates and the deduction remains limited to the rate of one fourth.
Because of this distinction, it is not correct for the employer to apply one fourth as a reflex when a notice concerning maintenance arrives. The employer must separate current maintenance from accrued maintenance and determine the correct rate for each file. Otherwise the employer’s legal liability may arise in respect of the consequences of an insufficient or erroneous deduction.
The Employer’s Obligations and How the Process Operates
Once the proceedings have become final, the creditor may request, by a petition filed with the enforcement office, that an attachment be placed on the debtor’s wages. On that request the enforcement office prepares a salary attachment notice and serves it on the debtor’s employer.
The matters on which the employer is asked to give information by the notice are as follows:
- Whether the person concerned is in fact still working at the workplace,
- The amount of the employee’s wages and the amount of any social benefits,
- Whether any other attachment has previously been established over the same wages.
The notice further states that a deduction must be made from the wages paid at the statutory rate (as a rule one fourth) and paid directly into the enforcement file each month, and it expressly recalls the consequences of a breach of that obligation.
The employer’s role is not confined to providing information; a duty to actually carry out the operations listed in the notice also arises. At this point the legislature has held the employer, which is not a party to the debt relationship, liable as though it were the party bound to pay.
The Obligation to Comply with the Attachment Notice
The salary attachment letter sent by the enforcement office is binding as a matter of law. The employer is obliged to make the deduction at the rate shown in the letter and to transfer the sums deducted to the relevant file in due time.
Within that framework the essential performances expected of the employer may be listed as follows:
- To pay the sum deducted directly into the relevant enforcement file, without any intermediary,
- To reply to the notice in writing within seven days,
- Where a fresh attachment letter is served while the deduction is continuing, to bring the position to the attention of the enforcement office,
- To make regular deductions from the employee’s wages at the statutory rate (one fourth).
Where these performances are not carried out, two consequences arise for the employer: it may be held personally liable for the claim up to the amount shown in the attachment letter, and enforcement proceedings may be commenced directly against it.
Indeed, Article 356 of the Enforcement and Bankruptcy Act allows recourse to enforcement against the employer, and recovery of the amount from it, where the employer fails to reply in due time or makes a statement contrary to the truth.
Ranking and Priority Where There Is More Than One Attachment
Where several sets of enforcement proceedings are being pursued against the same employee and more than one salary attachment notice is served on the employer, the employer’s duty does not end with making the deduction. In that situation the employer must convey the existing picture to the enforcement office fully and in detail so that the rules of ranking and priority can be properly operated.
When a fresh notice is served, the information that must be reported in writing to the enforcement office is as follows:
- The rate of deduction currently being applied,
- Whether a salary attachment has previously been served in respect of the employee,
- The file under which the deduction is being made and whether the payments are continuing,
- The case numbers of the pending attachment files.
That report is essential so that the attachments can be ranked by reference to the date of service and the file having priority can be identified.
Where there is more than one attachment, priority is determined according to the date on which the notices were served on the employer. No payment may be made to the next file until the claim in the file whose turn it is has been met in full. Not only is it legally impossible for the employer to transfer deductions to more than one file simultaneously, but the total deduction may as a rule not exceed 25% (maintenance claims fall outside this).
Where existing attachments are not reported, where an incorrect or incomplete report is made, or where payment is made contrary to the rule of ranking, two separate heads of liability may arise for the employer: liability arising from a payment made to a creditor whose turn has not come and direct liability under Article 356 of the Enforcement and Bankruptcy Act.
The Employer’s Capacity as a Third Party
In salary attachment the employer stands in the position of a third party drawn into the enforcement process by reason of a debt relationship to which it is not a party. That capacity does not, however, confer a passive role on the employer. On the contrary, by reason of the duties of information, deduction and payment imposed on it, the employer becomes an addressee bearing active responsibility in the process. Conduct contrary to those duties may give rise to the employer’s legal liability for the loss suffered by the creditor.
The Position of a Third Party in the Face of Enforcement Proceedings
For the purposes of the Enforcement and Bankruptcy Act the employer, although the addressee of the salary attachment notice, is a third party not regarded as a party to the proceedings.
Notwithstanding that it is not a party to the proceedings, the duties the employer must carry out are as follows:
- To refrain from making payments to the debtor that fall outside the scope of the attachment,
- To report whether the debtor is working at the workplace and what his income position is,
- To observe the rules of ranking and priority where there is more than one attachment,
- To make the deduction within the scope of the attachment and to pay over the sum deducted.
Where these obligations are breached, the creditor may make the employer the direct addressee of enforcement proceedings as though it were the principal debtor.
The Limits of Liability
The employer’s liability arising from salary attachment is limited by the framework of the attachment letter served on it and by the wage payments. It is no part of the employer’s duty to question the legal cause of the debt, to verify the accuracy of its amount, or to interpret the proceedings. It must, on the other hand, carry out in full the executive acts imposed on it.
The limits of liability may be summarised in that framework as follows:
- Where the sum deducted is sent to the wrong enforcement file, liability towards the creditor arises in respect of the loss caused by that payment.
- The scope of liability is limited to making the deduction from the wages and transferring the sum deducted to the relevant file.
- For each month in which no deduction is made, the employer is directly liable up to the amount it ought to have deducted.
In addition, the employer must report developments such as the employee leaving employment, the cessation of wage payments, a change in the amount of the wages or the service of a fresh salary attachment notice to the enforcement office without delay and in writing. The employer may be held liable for the legal consequences arising from a failure to make those reports.
The Legal Consequences of Failing to Comply with a Salary Attachment
A failure to comply with a salary attachment notice cannot be regarded as a formal or administrative shortcoming. A breach of that obligation may give rise to direct legal liability for the employer and may also, depending on the features of the case, produce consequences in the field of criminal law. A failure to give effect to the attachment letter is therefore a breach capable of exposing the employer to civil, administrative and, in some cases, criminal sanctions.
Direct Liability Arising Under Art. 356 of the Enforcement and Bankruptcy Act
Article 356 of the Enforcement and Bankruptcy Act lays down a clear consequence for an employer that, despite the attachment order, makes no deduction from the debtor’s salary or fails to send the sum deducted to the file: the amount not deducted and not remitted is recovered directly from the employer’s assets.
Enforcement and Bankruptcy Act No. 2004, Art. 356
"Money which those who have failed to comply with the provisions of the preceding article have not deducted, or have not remitted by the first available means, shall be recovered by the enforcement office from their salaries or other property, without any need to obtain a further judgment from a court."
The distinctive features of the payment obligation laid down by the statute are as follows:
- By reason of the failure to comply with the attachment letter, the creditor may claim its debt from the employer without any need to obtain a separate decision.
- The obligation is directed not at the debtor in the proceedings but at the employer itself.
- The amount for which liability attaches is limited to the sum the employer ought to have deducted and paid into the file each month.
Since in practice wages are characterised as an entitlement that is within the employer’s actual disposal and that must be deducted by reason of the attachment, the provision in question is applied by analogy to salary attachment as well.
Assessment from the Standpoint of Criminal Law
An employer’s knowing and deliberate failure to comply with an attachment order does not in every case give rise to criminal liability. Certain forms of conduct are, however, additionally passed through the filter of criminal law.
In the following cases in particular, whether an offence under the Turkish Penal Code No. 5237 has been committed is separately considered according to the features of the specific case:
- Making a statement contrary to the truth to the effect that no wage payment is being made,
- Concealing the debtor’s wages despite the notice,
- Making deliberate and misleading reports with a view to rendering the attachment ineffective.
Beyond this, the law of enforcement has also laid down special penal provisions with a view to protecting the process. Under Article 338 of the Enforcement and Bankruptcy Act, a person who makes a statement required by law in a manner contrary to the truth may, upon the creditor’s complaint, be sentenced by the enforcement criminal court to imprisonment of between three months and one year. That sanction is not in the nature of disciplinary or coercive imprisonment; it is a judicial sentence of imprisonment within the scope of an enforcement offence prosecuted upon complaint.
The conclusion to be drawn is this: while a mere failure to make the deduction does not as a rule give rise to criminal liability, knowingly making a statement contrary to the truth may bring enforcement-related criminal liability into play.
Moreover, in the following two situations an administrative fine may be imposed under Article 32 of the Misdemeanours Act by reference from Article 357 of the Enforcement and Bankruptcy Act:
- Deliberately preventing the sum deducted from being transferred to the creditor,
- Failing to make the salary deduction despite the express instruction of the enforcement officer.
Whether a criminal or administrative sanction is to be imposed is determined by assessing the employer’s intent, negligence and the gravity of the incident together. Where an attempt has deliberately been made to render the attachment ineffective, it is also possible for the creditor or the enforcement authority to lodge a criminal complaint with the public prosecutor’s office.
Independent Legal Assessment
Although salary attachment is perceived in practice as an ordinary payroll operation, it carries a measurable financial risk for the employer. The source of that risk is most often not bad faith but a failure to read the notice with sufficient care, the automatic assumption of a rate of one fourth in maintenance files, or the ranking being overlooked where there is more than one attachment. The cost of errors of this kind may, under Article 356 of the Enforcement and Bankruptcy Act, be met directly out of the employer’s assets.
For that reason, tying the salary attachment process to a written workflow between the human resources and accounting departments in corporate structures prevents the greater part of such disputes from the outset. In a particular file, the following matters should be examined as a priority:
- Establishing whether the notice arises from maintenance and, if so, distinguishing between current and accrued maintenance
- Diarising the seven-day period for reply and placing the response on file in writing
- Taking into account at the payroll stage that payments other than wages (severance pay, notice pay, leave pay) are not subject to the one-quarter limit
- Where there is more than one attachment, keeping a ranking table by dates of service and monitoring the 25% threshold for total deductions
- Reporting developments such as the employee leaving employment or a change in wages to the enforcement office without delay
- Not including benefits excluded from attachment (unemployment, short-time working, temporary incapacity) in the base for deduction
Independent Legal provides advisory and litigation services, without distinction between the employer and the creditor side, in the management of salary attachment processes, the preparation of correspondence on notices, and disputes as to liability arising under Article 356 of the Enforcement and Bankruptcy Act.