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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



Opinion No. 5745

July 24, 1980


Right of employer to deduct fee for processing wage assignment


Assignment of wages ordered by court

An employer may not deduct a processing fee from an employee's wages as reimbursement for the employer's expense in complying with a wage assignment ordered by a court.

Mr. Ronald C. Zellar

Prosecuting Attorney

Hillsdale County

One Building Street

Hillsdale, Michigan 49242

You have requested my opinion whether an employer may deduct a fee from an employee's salary for processing a court ordered wage assignment to the Friend of the Court pursuant to 1913 PA 239; MCLA 552.201 et seq; MSA 25.161 et seq, Sec. 3.

1913 PA 239, Sec. 3, supra, describes the authority of the Court to enforce its orders when a party to a divorce proceeding or separate maintenance has failed to make court ordered payments for the support and maintenance of minor children. Your question concerns the authority of the court to order an assignment of wages to the Friend of the Court pursuant to 1913 PA 239, Sec. 3, supra, as follows:

'Whenever the events described in section 1 have resumed so that the court would be authorized to place a person on probation the court may order an assignment to the friend of the court of the salary, wages or other income of the person responsible for the payment of support and maintenance, which assignment shall continue until further order of the court. The order of assignment shall be effective 1 week after service upon the employer of a true copy of the order by personal service or by certified mail. Thereafter, the employer shall withhold from the earnings due the employee the amount specified in the order of assignment for transmittal to the friend of the court until further order of the court. The person ordered to pay the support and maintenance shall inform the friend of the court immediately of any change which would affect the assignment or the disbursement thereof. An employer shall not use such assignment as a basis, in whole or in part, for the discharge of an employee or for any other disciplinary action against an employee. Compliance by an employer with the order of assignment operates as a discharge of the employer's liability to the employee as to that portion of the employee's earning [sic] so affected. The term employer as used in this section shall include the state and any political subdivision thereof.' (Emphasis added.)

As the statute indicates, an employer may be compelled by court order to transmit a part of the employee's wages to the Friend of the Court. You indicate that certain employers have deducted an additional amount from the employee's wages to compensate them for the administrative costs of complying with the court order.

It is clear that the statute itself does not contain authorization for the employer to deduct the processing fee. Moreover, that absence of such authority does not impair the constitutionality of the statute.

Compliance with a court order is a public duty. It has been held that compliance with a public duty persists no matter how financially burdensome that compliance may be. In Hurtado v United States, 410 US 578; 93 S Ct 1157; 35 L Ed 2d 508, reh den 411 US 978; 93 S Ct 2151; 36 L Ed 2d 701 (1973), the United States Supreme Court considered whether pursuant to the US Const, Am V, a witness could require the government to compensate him in a reasonable amount for testifying in a case. The Court held that providing evidence was a public duty and that the government had no obligation to compensate a witness for any financial loss suffered. Compliance with a court ordered wage assignment is an analogous public duty for the performance of which an employer has no constitutional right to compensation. Therefore, the failure of 1913 PA 239, Sec. 3, supra, to provide for compensation to the employer is not a constitutional infirmity.

The question remains whether an employer may unilaterally make a deduction from the employee's earnings as compensation for the employer's financial burden.

1978 PA 390; MCLA 408.471 et seq; MSA 17.277(1) et seq, Sec. 7, expressly prohibits an employer from making unilateral deductions from an employee's wages, providing:

'With the exception of those deductions required or expressly permitted by law or by a collective bargaining agreement, an employer shall not deduct from the wages of an employee, directly or indirectly, any amount without the full, free, and written consent of the employee, obtained without intimidation or fear of discharge for refusal to permit the deduction. . . .'

It is, therefore, my opinion that an employer may not deduct a processing fee from an employee's wages as reimbursement for the employer's expense in complying with a wage assignment ordered by the court pursuant to 1913 PA 239, Sec. 3, supra.

Frank J. Kelley

Attorney General

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