February 26, 1990

Hon. Howard B. Brown
Commissioner of Banking
44 Capitol Avenue
Hartford, CT 06106

Dear Commissioner Brown:

In your letter of June 1, 1989, you requested our advice on a matter involving wage executions on employees’ paychecks. Specifically, you asked, “‘[w]hen a wage execution is served on the Office of the Comptroller, may this department issue, during the 20-day automatic stay provided in Section 52-361a(d) of the Connecticut General Statutes, the final paycheck of an employee who has terminated employment with this department[?]” We advise you that you should issue an employee’s final paycheck under the circumstances described in your question.

Conn. Gen. Stat. §52-361a defines the procedure by which a creditor may obtain a wage execution against a judgment debtor. Subsection (d) of this statute states in part: “On service of the execution on the employer, the execution shall automatically be stayed for a period of twenty days and shall thereafter immediately become a lien and continuing levy on such portion of the judgment debtor’s earnings as is specified therein4)4B’D’D” (emphasis added). Subsection (g) of Section 52-361a further provides: “Any employer served with a wage execution, including the state and any municipality shall, upon expiration of the automatic stay of execution …..pay over to the levying officer such portion of the judgment debtor’s nonexempt earnings as the execution prescribes4)4B’D’D” (emphasis added).

To determine the meaning of these provisions, we follow certain fundamental principles of statutory construction. We must construe the words and phrases of a statute “according to the commonly approved usage of the language4)4B’D’D” . C.onn. Gen. Stat. §1-1(a). Furthermore, “[w]here a statute does not define a term, it is appropriate to look to the common understanding expressed in the law4)4B’D’D” Southington v. State Board of Labor Relations, 210 Conn. 549, 561, 556 A.2d 166, 172 (1989). In keeping with these rules, we note that “[t] he use of the word ‘shall’ by the legislature connotes that the performance of the statutory requirements is mandatory rather than permissive.”‘ Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43, 45 (1986). We also note that “[a] ‘stay’… is the postponement of an action or proceeding.”‘ Connecticut Light & Power v. Public Utilities Control Authority, 34 Conn. Supp. 172, 176, 382 A.2d 1003, 1004 (1977). See also Conn. Prac. Book §4046 (automatic stay of execution pending appeal); Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407, 414, 525 A.2d 83, 88 (1987).

Applying these definitions to the language of Section 52-361a, we conclude that subsections (d) and (g), quoted above, prevent an employer from acting upon a wage execution until twenty days after the employer has been served with the court’s order. These provisions make clear that until the automatic stay of execution has expired, an employer may not withold wages from an employee or pay any portion of an employee’s earnings to a levying officer.

We note that our interpretation of this statute comports with that of the Comptroller, who issued a memorandum, dated August 29, 1983, concerning the implementation of 1983 Conn. Pub. Acts No. 83-581, codified at Conn. Gen. Stat. § 52-361a. This memorandum, drafted shortly after the passage of P.A. 83-581, was addressed to the heads of all state agencies. It stated, in part: “‘No garnishment of wages under this act can be made until the first wages paid to the employee after the 20-day period ends.”‘ Memorandum No. 83-47, Office of the Comptroller (August 29, 1983).

We advise you, therefore, that if the final paycheck of an employee who has terminated employment with the department would normally be issued during the period of automatic stay, you should release the check to the employee.

We hope you find the preceding analysis helpful. Please let us know if we can be of any further assistance.

Very truly yours,

CLARINE NARDI RIDDLE
ATTORNEY GENERAL

Heather J. Wilson
Assistant Attorney General