Florida Senate - 2024 SB 1146
By Senator Trumbull
2-01118-24 20241146__
1 A bill to be entitled
2 An act relating to earned wage access providers;
3 creating part V of ch. 560, F.S., entitled “Florida
4 Earned Wage Access Services Act”; creating s. 560.409,
5 F.S.; providing a short title; creating s. 560.410,
6 F.S.; defining terms; creating s. 560.411, F.S.;
7 defining terms; requiring providers of earned wage
8 access services to register with the Financial
9 Services Commission; specifying the information that
10 must be included with the application; requiring the
11 commission to issue a proof of registration to
12 qualified applicants; requiring that the registration
13 or the registration number, as applicable, be
14 displayed in a specified manner; requiring that
15 registrations be renewed biennially; authorizing the
16 commission to extend the expiration date of a
17 registration for a specified purpose; prohibiting
18 assignment of a registration and the conduct of
19 business under more than one name; authorizing the
20 commission to deny, refuse to renew, or revoke a
21 registration for specified reasons; requiring the
22 commission to deny or refuse to renew a registration
23 under certain circumstances; creating s. 560.412,
24 F.S.; providing requirements for registered providers;
25 prohibiting certain activities on the part of
26 registered providers; providing construction;
27 authorizing providers to use a mailing address
28 provided by a consumer to determine a consumer’s state
29 of residence; creating s. 560.413, F.S.; providing
30 applicability; creating s. 560.414, F.S.; authorizing
31 the commission to issue orders imposing certain
32 actions or penalties for violations, including
33 imposition of administrative fines; authorizing the
34 commission to adopt rules; requiring the commission to
35 adopt an application for registration; authorizing
36 certain providers to operate without registration for
37 a specified timeframe after the effective date of this
38 act under certain conditions; providing an effective
39 date.
40
41 Be It Enacted by the Legislature of the State of Florida:
42
43 Section 1. Part V of chapter 560, Florida Statutes,
44 consisting of sections 560.409 through 560.414, Florida
45 Statutes, is created to read:
46
47 PART V
48
49 FLORIDA EARNED WAGE ACCESS SERVICES ACT
50
51 560.409 Short title.—This part shall be known as the
52 “Florida Earned Wage Access Services Act.”
53 560.410 Definitions.—As used in this part, the term:
54 (1) “Business entity” means any corporation, limited
55 liability company, partnership, association, or other commercial
56 entity.
57 (2) “Commission” means the Financial Services Commission.
58 (3) “Consumer” means an individual who resides in this
59 state.
60 (4) “Consumer-directed earned wage access services” means
61 the business of delivering to consumers access to earned but
62 unpaid income that is based on the consumer’s representations
63 and the provider’s reasonable determination of the consumer’s
64 earned but unpaid income.
65 (5) “Earned but unpaid income” means salary, wages,
66 compensation, or other income that a consumer or an employer has
67 represented, and that a provider has reasonably determined, has
68 been earned or accrued to the benefit of the consumer in
69 exchange for the consumer’s provision of services to the
70 employer or on behalf of the employer, including on an hourly,
71 project-based, piecework, or other basis and including
72 circumstances in which the consumer is acting as an independent
73 contractor of the employer, but has not, at the time of the
74 payment of proceeds, been paid to the consumer by the employer.
75 (6) “Earned wage access service” means the business of
76 providing consumer-directed earned wage access services or
77 employer-integrated earned wage access services, or both.
78 (7) “Employer” means a person or an entity that employs a
79 consumer or any other person who is contractually obligated to
80 pay a consumer earned but unpaid income in exchange for the
81 consumer’s provision of services to the employer or on behalf of
82 the employer, including on an hourly, project-based, piecework,
83 or other basis and including circumstances in which the consumer
84 is acting as an independent contractor with respect to the
85 employer. The term does not include a customer of an employer,
86 or any other person whose obligation to make a payment of
87 salary, wages, compensation, or other income to a consumer is
88 not based on the provision of services by that consumer for or
89 on behalf of the person.
90 (8) “Employer-integrated earned wage access services” means
91 the business of delivering to consumers access to earned but
92 unpaid income that is based on employment, income, or attendance
93 data obtained directly or indirectly from an employer.
94 (9) “Fee” includes a fee imposed by a provider for delivery
95 or expedited delivery of proceeds to a consumer or a
96 subscription or a membership fee imposed by a provider for a
97 bona fide group of services that includes earned wage access
98 services; however, the term does not include a voluntary tip,
99 gratuity, or other donation.
100 (10) “Outstanding proceeds” means proceeds remitted to a
101 consumer by a provider which have not yet been repaid to the
102 provider.
103 (11) “Proceeds” means a payment to a consumer by a provider
104 which is based on earned but unpaid income.
105 (12) “Provider” means a business entity that is in the
106 business of providing earned wage access services to consumers;
107 however, the term does not include either of the following:
108 (a) A service provider, such as a payroll service provider,
109 whose role may include verifying the available earnings but
110 which is not contractually obligated to fund proceeds delivered
111 as part of an earned wage access service.
112 (b) An employer that offers a portion of salary, wages, or
113 compensation directly to its employees or independent
114 contractors before the normally scheduled pay date.
115 (13) “Registrant” means a business entity registered with
116 the commission under s. 561.02(1) as an earned wage access
117 services provider.
118 560.411 Registration.—
119 (1) For the purposes of this section, the term:
120 (a) “Applicant” means a provider that has submitted an
121 application for a certificate of registration under subsection
122 (2).
123 (b) “Director” means a member of the applicant’s or
124 registrant’s board of directors. For purposes of this paragraph,
125 the term “member” means a person who has the right to receive
126 upon dissolution, or has contributed, 10 percent or more of the
127 capital of an applicant or registrant that is organized as a
128 limited liability company.
129 (c) “Key officer” includes the chief executive officer, the
130 chief financial officer, and the chief compliance officer.
131 (d) “Partner” means a person that has the right to receive
132 upon dissolution, or has contributed, 10 percent or more of the
133 capital of an applicant or a registrant that is organized as a
134 partnership.
135 (2) Each provider shall register with the commission. An
136 applicant must provide its legal business and trade name,
137 mailing address, business locations, and the full names and
138 addresses of its partners, members, or directors and key
139 officers, and the Florida agent of the corporation; must state
140 whether it is a domestic or a foreign corporation; must provide
141 its state and date of incorporation, its charter number, and, if
142 it is a foreign corporation, the date it registered with the
143 Department of State; and, if the provider is operating under a
144 fictitious or trade name, must provide the date on which it
145 registered its fictitious name.
146 (3) A certificate evidencing proof of registration must be
147 issued by the commission and must be prominently displayed at
148 the provider’s primary place of business; however, if the
149 provider conducts business on a website, the provider must post
150 its registration number on its website.
151 (4) A registration must be renewed biennially on or before
152 its expiration date. In order to establish staggered expiration
153 dates, the commission may extend the expiration date of a
154 registration for a period not to exceed 12 months.
155 (5) A registration issued under this chapter is not
156 assignable, and the provider may not conduct business under more
157 than one name except as registered. A provider desiring to
158 change its registered name, location, or designated agent for
159 service of process at a time other than upon renewal of
160 registration must notify the commission of the change.
161 (6) The commission may deny, refuse to renew, or revoke the
162 registration of a provider based upon a determination that any
163 of the following criteria applies to the provider, or any of the
164 provider’s partners, members, or directors and key officers:
165 (a) Has failed to meet the requirements for registration as
166 provided in this chapter.
167 (b) Has been convicted of a crime involving fraud,
168 dishonest dealing, or any other act of moral turpitude.
169 (c) Has not satisfied a civil fine or penalty arising out
170 of an administrative or enforcement action brought by a
171 governmental agency or a private person based upon conduct
172 involving fraud, dishonest dealing, or any violation of this
173 chapter.
174 (d) Has pending against it any criminal, administrative, or
175 enforcement proceedings in any jurisdiction, based upon conduct
176 involving fraud, dishonest dealing, or any other act of moral
177 turpitude.
178 (e) Has had a judgment entered against it in any action
179 brought by the commission or the Department of Legal Affairs
180 under this chapter or the Florida Deceptive and Unfair Trade
181 Practices Act.
182 (7) The commission shall deny or refuse to renew the
183 registration of a provider or deny a registration or renewal
184 request by any of the provider’s partners, members, or directors
185 and key officers if such entities have not satisfied a civil
186 penalty or administrative fine for a violation of s. 560.412.
187 560.412 Provider requirements; limitations.—
188 (1) A provider required to register under s. 560.411(2)
189 shall do all of the following:
190 (a) Develop and implement policies and procedures to
191 respond to questions raised by consumers and address complaints
192 from consumers in an expedient manner.
193 (b) Offer to the consumer at least one reasonable option to
194 obtain proceeds at no cost to the consumer and clearly explain
195 how to elect the no-cost option.
196 (c) Before entering into an agreement with a consumer for
197 the provision of earned wage access services:
198 1. Inform the consumer of his or her rights under the
199 agreement; and
200 2. Fully and clearly disclose all fees associated with the
201 earned wage access services.
202 (d) Inform the consumer of any material changes to the
203 terms and conditions of providing the earned wage access
204 services before applying those changes to that consumer.
205 (e) Allow the consumer to cancel use of the provider’s
206 earned wage access services at any time, without incurring a
207 cancellation fee or penalty imposed by the provider. If the
208 consumer has initiated an advance of proceeds, the provider may
209 require the effective date of the cancellation to be after the
210 consumer has satisfied any repayment obligation the consumer has
211 to the provider, either through payroll deduction, preauthorized
212 electronic funds transfer from a consumer’s account or
213 depository institution, or other means previously agreed to by
214 the consumer and the provider. This paragraph does not require a
215 provider to allow a consumer-initiated advance to be canceled,
216 revoked, suspended, or reversed after the consumer initiates the
217 advance.
218 (f) Comply with all applicable local, state, and federal
219 privacy and information security laws.
220 (g) If the provider solicits, charges, or receives a tip,
221 gratuity, or other donation from a consumer:
222 1. Disclose, clearly and conspicuously, to the consumer
223 immediately before each transaction that a tip, gratuity, or
224 other donation amount may be zero and is voluntary; and
225 2. Disclose, clearly and conspicuously, in the service
226 contract with the consumer that tips, gratuities, and donations
227 are voluntary and that the offering of earned wage access
228 services, including the amount of proceeds a consumer is
229 eligible to request and the frequency with which proceeds are
230 provided to a consumer, is not contingent on whether the
231 consumer pays any tip, gratuity, or other donation or on the
232 size of a tip, gratuity, or other donation.
233 (h) Provide proceeds to a consumer by any means mutually
234 agreed upon by the consumer and the provider.
235 (i) If the provider will seek repayment of outstanding
236 proceeds or payment of fees or other amounts owed, including
237 voluntary tips, gratuities, or other donations, in connection
238 with the activities covered by this chapter, from a consumer’s
239 depository institution, including by means of electronic funds
240 transfer:
241 1. Comply with applicable provisions of the Electronic Fund
242 Transfer Act, 15 U.S.C. s. 1693, and regulations adopted under
243 the act; and
244 2. Reimburse the consumer for the full amount of any
245 overdraft or insufficient funds fees imposed on the consumer by
246 the consumer’s depository institution which were caused by the
247 provider attempting to seek payment of any outstanding proceeds,
248 fees, or other payments in connection with the activities
249 covered by this chapter, including voluntary tips, gratuities,
250 or other donations, on a date before, or in an incorrect amount
251 from, the date or amount disclosed to the consumer. However, the
252 provider is not subject to the requirements in this subparagraph
253 with respect to payments of outstanding amounts or fees incurred
254 by a consumer through fraudulent or other unlawful means.
255 (2) A provider required to register under s. 560.411(2) may
256 not do any of the following:
257 (a) Share with an employer a portion of any fees, voluntary
258 tips, gratuities, or other donations that were received from or
259 charged to a consumer for earned wage access services.
260 (b) Require a consumer’s credit report or a credit score
261 provided or issued by a consumer reporting agency to determine a
262 consumer’s eligibility for earned wage access services.
263 (c) Accept payment of outstanding proceeds, fees, voluntary
264 tips, gratuities, or other donations from a consumer by means of
265 a credit card or charge card.
266 (d) Charge a late fee, deferral fee, interest, or any other
267 penalty or fee for failure to pay outstanding proceeds, fees,
268 voluntary tips, gratuities, or other donations.
269 (e) Report to a consumer reporting agency or debt collector
270 any information about the consumer regarding the inability of
271 the consumer to pay outstanding proceeds, fees, voluntary tips,
272 gratuities, or other donations.
273 (f) Compel or attempt to compel payment by a consumer of
274 outstanding proceeds, fees, voluntary tips, gratuities, or other
275 donations to the provider through any of the following means:
276 1. A suit against the consumer in a court of competent
277 jurisdiction.
278 2. Use of a third party to pursue collection from the
279 consumer on the provider’s behalf.
280 3. Sale of outstanding amounts to a third-party collector
281 or debt buyer for collection from the consumer.
282
283 The prohibition imposed in this paragraph does not preclude the
284 use by a provider of any of the methods specified in this
285 paragraph to compel payment of outstanding amounts or fees
286 incurred by a consumer through fraudulent or other unlawful
287 means, nor does it preclude a provider from pursuing an employer
288 for breach of its contractual obligations to the provider.
289 (g) Mislead or deceive consumers about the voluntary nature
290 of tips, gratuities, or donations or make representations that
291 tips, gratuities, or other donations will benefit any specific
292 individuals.
293 (3) A provider may use the mailing address provided by a
294 consumer to determine the consumer’s state of residence for
295 purposes of this part.
296 560.413 Applicability.—
297 (1) Notwithstanding any other provision of law, earned wage
298 access services offered and provided by a registrant in
299 compliance with this chapter are not considered to be any of the
300 following:
301 (a) In conflict with s. 516.17 or other state law governing
302 the sale or assignment of, or an order for, earned but unpaid
303 income.
304 (b) A loan or other form of credit or debt, and the
305 provider is not considered a creditor, debt collector, or lender
306 with respect to such services.
307 (c) Money transmission, and the provider is not considered
308 a money transmitter, as defined in s. 560.103(24), with respect
309 to such services.
310 (2) Chapter 516 does not apply to proceeds that a provider
311 provides to a consumer in accordance with this part.
312 (3) A voluntary tip, gratuity, or other donation paid by a
313 consumer to a registrant in accordance with this chapter is not
314 considered a finance charge.
315 560.414 Administrative remedies, penalties.—
316 (1) The commission may issue an order for one or more of
317 the following actions or penalties if it finds that a provider
318 has violated or is operating in violation of this part or rules
319 adopted pursuant thereto:
320 (a) Issue a notice of noncompliance under s. 120.695.
321 (b) Impose an administrative fine in the Class II category
322 pursuant to s. 570.971 for each act or omission.
323 (c) Direct that the provider cease and desist specified
324 activities.
325 (d) Refuse to register or revoke or suspend a registration.
326 (e) Place the registrant on probation, subject to
327 conditions specified by the commission.
328 (2) The administrative proceedings that could result in the
329 entry of an order imposing any of the actions or penalties
330 specified in subsection (1) are governed by chapter 120.
331 (3) The commission may adopt rules under ss. 120.536(1) and
332 120.54 to administer this part.
333 Section 2. On or before the effective date of this act, the
334 commission shall prescribe the form and content of an
335 application for registration to provide earned wage access
336 services pursuant to this act. A provider that, as of January 1,
337 2024, is engaged in the business of providing earned wage access
338 services in this state may, until 6 months after the effective
339 date of this act, continue to engage in such business without
340 registering if the provider has submitted an application for
341 registration and otherwise complies with this act.
342 Section 3. This act shall take effect October 1, 2024.