Florida 2024 Regular Session

Florida House Bill H1009 Compare Versions

Only one version of the bill is available at this time.

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10	10	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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14	14	A bill to be entitled 1
15	15	An act relating to earned wage access services; 2
16	16	creating ch. 437, F.S.; creating s. 437.01, F.S.; 3
17	17	providing a short title; creating s. 437.02, F.S.; 4
18	18	providing definitions related to earned wage access 5
19	19	services; creating s. 437.03, F.S.; requiring 6
20	20	providers to register with the Financial Services 7
21	21	Commission; providing registration requirements; 8
22	22	specifying mechanisms by which registrations may be 9
23	23	denied, not renewed, or revoked; creating s. 437.04, 10
24	24	F.S.; providing requirements with which a provider 11
25	25	must comply; prohibiting certain acts by a provider; 12
26	26	creating s. 437.05, F.S.; specifying the interplay 13
27	27	between earned wage access services provided by a 14
28	28	provider and operation of other state laws related to 15
29	29	those services; creating s. 437.06, F.S.; providing 16
30	30	administrative remedies and penalties; authorizing the 17
31	31	Financial Services Commission to adopt rules; 18
32	32	requiring the commission, by a date certain, to 19
33	33	prescribe form and content of the applications; 20
34	34	providing for situations in which a person has 21
35	35	previously provided earned wage access services; 22
36	36	specifying applicability of certain provisions; 23
37	37	providing a contingent effective date. 24
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47	47	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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51	51	Be It Enacted by the Legis lature of the State of Florida: 26
52	52	27
53	53	Section 1. Chapter 437, Florida Statutes, of sections 28
54	54	437.01-437.06, is created to read: 29
55	55	30
56	56	Chapter 437 31
57	57	Earned Wage Access Services 32
58	58	437.01 Short title. —This chapter shall be cited as the 33
59	59	"Florida Earned Wage Access S ervices Act." 34
60	60	437.02 Definitions. —As used in this chapter, the term: 35
61	61	(1) "Applicant" means a provider that has submitted an 36
62	62	application for a certificate of registration under s. 437.03. 37
63	63	(2) "Business entity" means any corporation, limited 38
64	64	liability company, partnership, association, or other commercial 39
65	65	entity. 40
66	66	(3) "Commission" means the Financial Services Commission. 41
67	67	(4) "Consumer" means a person who resides in the state. 42
68	68	(5) "Consumer-directed earned wage access services" means 43
69	69	the business of delivering to consumers access to earned but 44
70	70	unpaid income that is based on the consumer's representations 45
71	71	and the provider's reasonable determination of the consumer's 46
72	72	earned but unpaid income. 47
73	73	(6) "Director" means a member of the applicant's or 48
74	74	registrant's board of directors. 49
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83	83	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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87	87	(7) "Earned but unpaid income" means salary, wages, 50
88	88	compensation, or other income that a consumer or an employer has 51
89	89	represented, and that a provider has reasonably determined has 52
90	90	been earned or accrued to the benefit of the consumer in 53
91	91	exchange for the consumer's provision of services to the 54
92	92	employer or on behalf of the employer, including on an hourly, 55
93	93	project-based, piecework, or other basis and including 56
94	94	circumstances in which the consumer is acting as an independent 57
95	95	contractor of the employer, but has not, at the time of the 58
96	96	payment of proceeds, been paid to the consumer by the employer. 59
97	97	(8) "Earned wage access services" means the business of 60
98	98	providing consumer-directed earned wage access services or 61
99	99	employer-integrated earned wage access services, or both. 62
100	100	(9)(a) "Employer," except as provided in paragraph (b), 63
101	101	means any of the following: 64
102	102	1. A person who employs a consumer. 65
103	103	2. Any other person who is contractually obligated to pay 66
104	104	a consumer earned but unpaid i ncome in exchange for the 67
105	105	consumer's provision of services to the employer or on behalf of 68
106	106	the employer including on an hourly, project -based, piecework, 69
107	107	or other basis and including circumstances in which the consumer 70
108	108	is acting as an independent contracto r with respect to the 71
109	109	employer. 72
110	110	(b) "Employer" does not include any of the following: 73
111	111	1. A customer of an employer. 74
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120	120	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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124	124	2. Any other person whose obligation to make a payment of 75
125	125	salary, wages, compensation, or other income to a consumer is 76
126	126	not based on the provision of services by that consumer for or 77
127	127	on behalf of the person. 78
128	128	(10) "Employer-integrated earned wage access services" 79
129	129	means the business of delivering to consumers access to earned 80
130	130	but unpaid income that is based on employment, income, or 81
131	131	attendance data obtained directly or indirectly from an employer 82
132	132	(11)(a) "Fee," except as provided in paragraph (b), 83
133	133	includes any of the following: 84
134	134	1. A fee imposed by a provider for delivery or expedited 85
135	135	delivery of proceeds to a consumer. 86
136	136	2. A subscription or membership fee imposed by a provider 87
137	137	for a bona fide group of services that included earned wage 88
138	138	access services. 89
139	139	(b) "Fee" does not include a voluntary tip, gratuity, or 90
140	140	other donation. 91
141	141	(12) "Key officer" means chief executive officer, Chief 92
142	142	financial officer, and chief compliance officer. 93
143	143	(13) "Member," except as used in subsection (6), means a 94
144	144	person that has the right to receive upon dissolution, or has 95
145	145	contributed, 10 percent or more of the capital of an applicant 96
146	146	or registrant that is or ganized as a limited liability company. 97
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155	155	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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159	159	(14) "Outstanding proceeds" means proceeds remitted to a 98
160	160	consumer by a provider that have not yet been repaid to the 99
161	161	provider. 100
162	162	(15) "Partner" means a person that has the right to 101
163	163	receive upon dissolution, or has contributed, 10 percent or more 102
164	164	of the capital of an applicant or registrant that is organized 103
165	165	as a partnership. 104
166	166	(16) "Proceeds" means a payment to a consumer by a 105
167	167	provider that is based on earned but unpaid income. 106
168	168	(17)(a) "Provider," except as provid ed in paragraph (b), 107
169	169	means a business entity that is in the business of providing 108
170	170	earned wage access services to consumers. 109
171	171	(b) "Provider" does not include any of the following: 110
172	172	1. A service provider, such as a payroll service provider, 111
173	173	whose role may include verifying the available earnings but that 112
174	174	is not contractually obligated to fund proceeds delivered as 113
175	175	part of an earned wage access service. 114
176	176	2. An employer that offers a portion of salary, wages, or 115
177	177	compensation directly to its employees or inde pendent 116
178	178	contractors before the normally scheduled pay date. 117
179	179	(18) "Registrant" means a business entity that is 118
180	180	registered with the commission under s. 437.03. 119
181	181	437.03 Registration. — 120
182	182	(1) Each provider must register with the commission and 121
183	183	must provide: 122
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192	192	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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196	196	(a) Its legal business and trade name, mailing address, 123
197	197	and business locations. 124
198	198	(b) The full names and addresses of its partners, members, 125
199	199	or directors and key officers and the Florida agent of the 126
200	200	corporation. 127
201	201	(c) A statement documenting whether the provider is a 128
202	202	domestic or foreign corporation. 129
203	203	(d) The state and date of incorporation, the charter 130
204	204	number, and, if the provider is a foreign corporation, the date 131
205	205	it registered with the Department of State. 132
206	206	(e) The date on which the provider registered its 133
207	207	fictitious name if the provider is operating under a fictitious 134
208	208	or trade name. 135
209	209	(2) The commission shall issue a certificate evidencing 136
210	210	proof of registration which the provider must prominently 137
211	211	display at the provider's primary place of business. If the 138
212	212	provider conducts business on a website, the provider must also 139
213	213	post its registration number on the website. 140
214	214	(3) A registration must be renewed biennially on or before 141
215	215	the expiration date. In or der to establish staggered expiration 142
216	216	dates, the commission may extend the expiration date of a 143
217	217	registration for a period not to exceed 12 months. 144
218	218	(4) A registration issued under this chapter is not 145
219	219	assignable and the provider may not conduct business un der more 146
220	220	than one name except as registered. A provider desiring to 147
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229	229	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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233	233	change its registered name, location, or designated agent for 148
234	234	service of process at a time other than upon renewal of 149
235	235	registration must notify the commission of the change. 150
236	236	(5) The commission may deny, refuse to renew, or revoke 151
237	237	the registration of any provider based on a determination that 152
238	238	the provider, or any of the provider's partners, members, or 153
239	239	directors and key officers: 154
240	240	(a) Has failed to meet the requirements for registration 155
241	241	as provided in this chapter; 156
242	242	(b) Has been convicted of a crime involving fraud, 157
243	243	dishonest dealing, or any other act of moral turpitude; 158
244	244	(c) Has not satisfied a civil fine or penalty arising out 159
245	245	of any administrative or enforcement action brought by any 160
246	246	governmental agency or private person based upon conduct 161
247	247	involving fraud, dishonest dealing, or a violation of this 162
248	248	chapter; 163
249	249	(d) Has any pending criminal, administrative, or 164
250	250	enforcement proceedings in any jurisdiction, based on conduct 165
251	251	involving fraud, dishonest dealing, or any other act of moral 166
252	252	turpitude; or 167
253	253	(e) Has had a judgment entered against the provider in any 168
254	254	action brought by the commission or the Department of Legal 169
255	255	Affairs under this chapter or under ss. 501.201 -501.213, the 170
256	256	Florida Deceptive and Unfair Trade Practices Act. 171
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265	265	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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269	269	(6) The commission shall deny or refuse to renew the 172
270	270	registration of a provider or deny a registration or renewal 173
271	271	request by any of the provider's partners, members, or directors 174
272	272	and key officers if the provider has not s atisfied a civil 175
273	273	penalty or administrative fine for a violation of s. 437.04. 176
274	274	437.04 Provider requirements; limitations. — 177
275	275	(1) A provider that is registered under s. 437.03 must: 178
276	276	(a) Develop and implement policies and procedures to 179
277	277	respond to questions raised by consumers and address complaints 180
278	278	from consumers in an expedient manner. 181
279	279	(b) Offer to the consumer at least one reasonable option 182
280	280	to obtain proceeds at no cost to the consumer and clearly 183
281	281	explain how to elect that no -cost option. 184
282	282	(c) Before entering into an agreement with a consumer for 185
283	283	the provision of earned wage access services: 186
284	284	1. Inform the consumer of his or her rights under the 187
285	285	agreement. 188
286	286	2. Clearly disclose all fees associated with the earned 189
287	287	wage access services. 190
288	288	(d) Inform the consumer of any material changes to the 191
289	289	terms and conditions of the earned wage access services before 192
290	290	implementing those changes for that consumer. 193
291	291	(e) Allow the consumer to cancel use of the provider's 194
292	292	earned wage access services at any time without incurring a 195
293	293	cancellation fee or penalty imposed by the provider. 196
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306	306	(f) Comply with all applicable local, state, and federal 197
307	307	privacy and information security laws. 198
308	308	(g) If a provider solicits, charges, or receives a tip, 199
309	309	gratuity, or other donation from a consumer: 200
310	310	1. Clearly and conspicuously disclose to the consumer 201
311	311	immediately before each transaction that a tip, gratuity, or 202
312	312	other donation amount may be zero and is voluntary. 203
313	313	2. Clearly and conspicuously disclose in its service 204
314	314	contract with the cons umer that tips, gratuities, or donations 205
315	315	are voluntary and that the offering of earned wage access 206
316	316	services, including the amount of proceeds a consumer is 207
317	317	eligible to request and the frequency with which proceeds are 208
318	318	provided to a consumer, is not conting ent upon whether the 209
319	319	consumer pays any tip, gratuity, or other donation or upon the 210
320	320	size of the tip, gratuity, or other donation. 211
321	321	(h) Provide proceeds to a consumer by any means mutually 212
322	322	agreed upon by the consumer and the provider. 213
323	323	(i) If the provider seeks repayment of outstanding 214
324	324	proceeds or payment of fees or other amounts owed or paid, 215
325	325	including voluntary tips, gratuities, or other donations, in 216
326	326	connection with the activities covered by this chapter, from a 217
327	327	consumer's depository institution, including by means of 218
328	328	electronic funds transfer: 219
329	329	1. Comply with applicable provisions of the federal 220
330	330	Electronic Funds Transfer Act of 1978, 15 U.S.C. 1693 et. seq., 221
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339	339	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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343	343	and regulations adopted under the act. 222
344	344	2. Reimburse the consumer for the full amount of any 223
345	345	overdraft or insufficient funds fees imposed on a consumer by 224
346	346	the consumer's depository institution that were caused by the 225
347	347	provider attempting to seek payment of any outstanding proceeds, 226
348	348	fees, or other payments, in connection with the activities 227
349	349	covered by this chapter, including voluntary tips, gratuities, 228
350	350	or other donations, on a date before, or in an incorrect amount 229
351	351	from, the date or amount disclosed to the consumer. However, the 230
352	352	provider is not subject to the requirements in this s ubsection 231
353	353	with respect to payments of outstanding amounts or fees incurred 232
354	354	by a consumer through fraudulent or other unlawful means. 233
355	355	(2) A provider registered under s. 437.03 may not: 234
356	356	(a) Share with an employer a portion of any fees, 235
357	357	voluntary tips, gratuities, or other donations that were 236
358	358	received from or charged to a consumer for earned wage access 237
359	359	services. 238
360	360	(b) Require a consumer's credit report or a credit score 239
361	361	provided or issued by a consumer reporting agency to determine a 240
362	362	consumer's eligibilit y for earned wage access services. 241
363	363	(c) Accept payment of outstanding proceeds, fees, 242
364	364	voluntary tips, gratuities, or other donations from a consumer 243
365	365	by means of a credit card or charge card. 244
366	366	(d) Charge a late fee, deferral fee, interest, or any 245
367	367	other penalty or charge for failure to pay outstanding proceeds, 246
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376	376	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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380	380	fees, voluntary tips, gratuities, or other donations. 247
381	381	(e) Report to a consumer reporting agency or debt 248
382	382	collector any information about the consumer regarding the 249
383	383	inability of the provider to be re paid outstanding proceeds, 250
384	384	fees, voluntary tips, gratuities, or other donations. 251
385	385	(f) Compel or attempt to compel payment by a consumer of 252
386	386	outstanding proceeds, fees, voluntary tips, gratuities, or other 253
387	387	donations to the provider through any of the follow ing means: 254
388	388	1. A suit against the consumer in a court of competent 255
389	389	jurisdiction. 256
390	390	2. Use of a third party to pursue collection from the 257
391	391	consumer on the provider's behalf. 258
392	392	3. Sale of outstanding amounts to a third -party collector 259
393	393	or debt buyer for colle ction from the consumer. 260
394	394	(g) If the provider solicits, charges, or receives tips, 261
395	395	gratuities, or other donations from a consumer; misleads or 262
396	396	deceives consumers about the voluntary nature of the tips, 263
397	397	gratuities, or donations; or makes representations th at tips, 264
398	398	gratuities, or other donations benefit any specific individuals. 265
399	399	(3) The limitations set forth in paragraph (2)(f) do not 266
400	400	preclude the use by a provider of any of the methods specified 267
401	401	in paragraph (2)(f) to compel payment of outstanding amounts or 268
402	402	fees incurred by a consumer through fraudulent or other unlawful 269
403	403	means, nor do they preclude a provider from pursuing an employer 270
404	404	for breach of its contractual obligations to the provider. 271
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413	413	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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417	417	(4) A provider may use the mailing address provided by a 272
418	418	consumer to determine the consumer's state of residence for 273
419	419	purposes of this chapter. 274
420	420	437.05 Interoperation; applicability. — 275
421	421	(1)(a) Notwithstanding any other provision of law to the 276
422	422	contrary, any earned wage access services offered or provided by 277
423	423	a provider in compliance with this chapter is not considered: 278
424	424	1. A violation of or noncompliance with s. 516.17 or any 279
425	425	other general law governing the sale or assignment of, or an 280
426	426	order for, earned but unpaid income. 281
427	427	2. A loan or other form of credit or debt, a nd the 282
428	428	provider is not considered a creditor, debt collector, or 283
429	429	lender. 284
430	430	3. A money transmission, and the provider is not 285
431	431	considered a money transmitter, as defined in s. 560.103(24). 286
432	432	(b) Notwithstanding any other law, fees paid to a provider 287
433	433	in accordance with this chapter are not considered interest or 288
434	434	finance charges. If there is a conflict between the provisions 289
435	435	of this chapter and any other general law, the provisions of 290
436	436	this chapter control. 291
437	437	(2) Chapter 516 does not apply to proceeds a provider 292
438	438	provides to a consumer in accordance with this chapter. 293
439	439	(3) A voluntary tip, gratuity, or other donation paid by a 294
440	440	consumer to a registrant in accordance with this chapter may not 295
441	441	be considered a finance charge. 296
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450	450	F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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454	454	437.06 Administrative remedies; penalties.— 297
455	455	(1) If the commission finds that a provider has violated 298
456	456	this chapter or any rules adopted or orders issued under this 299
457	457	chapter, the commission may enter an order doing one or more of 300
458	458	the following: 301
459	459	(a) Issue a notice of noncompliance under s. 120.695. 302
460	460	(b) Impose an administrative fine in the Class II category 303
461	461	under s. 570.971 for each act or omission. 304
462	462	(c) Direct that the provider cease and desist specified 305
463	463	activities. 306
464	464	(d) Refuse to re-register the provider or revoke or 307
465	465	suspend a registration. 308
466	466	(e) Place the provider on probation, subject to conditions 309
467	467	specified by the commission. 310
468	468	(2) The administrative proceedings that could result in 311
469	469	the entry of an order imposing any of the penalties specified in 312
470	470	subsection (1) are governed by cha pter 120. 313
471	471	Section 2. Upon this act becoming law, the Financial 314
472	472	Services Commission is authorized, and all conditions are deemed 315
473	473	met, to adopt rules pursuant to ss. 120.536(1) and 120.54, 316
474	474	Florida Statutes. No later than January 1, 2025, the commission 317
475	475	shall prescribe the form and content of an application for 318
476	476	registration to provide earned wage access services pursuant to 319
477	477	this act. 320
478	478	Section 3. An individual who, as of January 1, 2023, was 321
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491	491	engaged in the business of providing earned wage access service s 322
492	492	in the state may, until July 1, 2025, continue to engage in the 323
493	493	business of providing earned wage access services without 324
494	494	registering if the individual has submitted an application for 325
495	495	registration under s. 437.03, Florida Statutes, and otherwise 326
496	496	complies with this act. 327
497	497	Section 4. Section 437.04 (1)(b), Florida Statutes, as 328
498	498	created by this act, first applies, with respect to a provider 329
499	499	that offers proceeds to a consumer under the terms of an 330
500	500	agreement that specifies the consumer's cost of obtaining 331
501	501	proceeds, to any agreement entered into, renewed, or modified on 332
502	502	or after January 1, 2025. 333
503	503	Section 5. Except as otherwise expressly provided in this 334
504	504	act and except for this section, which shall take effect upon 335
505	505	this act becoming a law, this act shall tak e effect January 1, 336
506	506	2025. 337