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HOUSE BILL 59
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Tara L. Lujan
AN ACT
RELATING TO WAGE ACCESS; ENACTING THE EARNED WAGE ACCESS
SERVICES ACT; PROVIDING POWERS AND DUTIES OF THE FINANCIAL
INSTITUTIONS DIVISION OF THE REGULATION AND LICENSING
DEPARTMENT; PROVIDING FOR LICENSURE OF EARNED WAGE ACCESS
SERVICES PROVIDERS; PROVIDING FOR DENIAL, SUSPENSION OR
REVOCATION OF LICENSES; PROVIDING FOR HEARINGS AND APPEALS;
REQUIRING EXAMINATIONS AND INVESTIGATIONS; SETTING CONDITIONS
AND RESTRICTIONS; PROVIDING EXEMPTIONS FROM THE ACT; GRANTING
EXCLUSIVE JURISDICTION TO THE STATE; REQUIRING ANNUAL REPORTS;
PRESCRIBING A PENALTY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new Section 58-34-1 NMSA 1978 is enacted to
read:
"58-34-1. [NEW MATERIAL ] SHORT TITLE.--Chapter 58,
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Article 34 NMSA 1978 may be cited as the "Earned Wage Access
Services Act"."
SECTION 2. A new Section 58-34-2 NMSA 1978 is enacted to
read:
"58-34-2. [NEW MATERIAL ] DEFINITIONS.--As used in the
Earned Wage Access Services Act:
A. "applicant" means a person who applies for a
license;
B. "consumer" means a person who resides in New
Mexico;
C. "consumer-directed wage access services" means
delivering to a consumer access to earned but unpaid income
that is based on the consumer's representations and the
provider's reasonable determination of the worker's earned but
unpaid income;
D. "division" means the financial institutions
division of the regulation and licensing department;
E. "director" means the director of the division;
F. "earned but unpaid income" means salary, wages,
compensation or other income that a consumer or an employer has
represented, and a provider has reasonably determined, has been
earned or accrued to the benefit of the consumer in exchange
for the consumer's provision of services to the employer or on
behalf of the employer, including on an hourly, project-based,
piecework or other basis and including circumstances in which
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the consumer is acting as an independent contractor of the
employer but has not, at the time of the payment of proceeds,
been paid to the consumer by the employer;
G. "earned wage access services" means providing
consumer-directed wage access services or employer-integrated
wage access services or both;
H. "employer" means a person who employs a consumer
or is contractually obligated to pay a consumer earned but
unpaid income in exchange for the consumer's provision of
services to the employer or on behalf of the employer,
including on an hourly, project-based, piecework or other basis
and including circumstances in which the consumer is acting as
an independent contractor with respect to the employer;
I. "employer" does not mean a customer of an
employer or any other person whose obligation to make a payment
of salary, wages, compensation or other income to a consumer is
not based on the provision of services by that consumer for or
on behalf of the person;
J. "employer-integrated wage access services" means
delivering access to an advance of earned but unpaid income to
a consumer that is based on employment, income or attendance
data obtained directly or indirectly from an employer or an
employer's payroll service provider;
K. "fee" means:
(1) a fee imposed by a provider for delivery
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or expedited delivery of proceeds to a consumer; or
(2) a subscription or membership fee imposed
by a provider for a bona fide group of services that include
earned wage access services;
L. "fee" does not include a voluntary tip, gratuity
or other donation;
M. "license" means a permit issued under the
authority of the Earned Wage Access Services Act to engage in
business as an earned wage access services provider and collect
charges therefor strictly in accordance with the provisions of
that act. It shall constitute and shall be construed as a
grant of a revocable privilege only to be held and enjoyed
subject to all the conditions, restrictions and limitations
contained in that act and lawful rules promulgated by the
director and not otherwise;
N. "licensee" means a person to whom one or more
licenses have been issued pursuant to the Earned Wage Access
Services Act upon the person's written application electing to
become a licensee and consenting to exercise the privilege of a
licensee solely in conformity with that act and the lawful
rules promulgated by the director under that act and whose name
appears on the face of the license;
O. "outstanding proceeds" means proceeds remitted
to a consumer by a provider that have not yet been repaid to
the provider;
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P. "person" means an individual, copartner,
association, trust, corporation and any other legal entity;
Q. "proceeds" means a payment to a consumer by a
provider that is based on earned but unpaid income; and
R. "provider" or "earned wage access services
provider" means a person that is in the business of providing
earned wage access services to consumers; provided that
"provider" or "earned wage access services provider" does not
include:
(1) a service provider, such as a payroll
service provider, whose role may include verifying the
available earnings but is not contractually obligated to fund
any proceeds delivered as part of an earned wage access
service; or
(2) an employer that offers a portion of
salary, wages or compensation directly to its employees or
independent contractors before the normally scheduled pay
date."
SECTION 3. A new Section 58-34-3 NMSA 1978 is enacted to
read:
"58-34-3. [NEW MATERIAL ] EARNED WAGE ACCESS SERVICES
PROVIDER--LICENSE REQUIRED--EXCEPTIONS.--
A. A person shall not engage in business as a
provider in this state without first having obtained a license
from the division.
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B. A banking corporation, savings and loan
association or credit union operating under the laws of the
United States or of a state is exempt from the licensing
requirements of the Earned Wage Access Services Act.
C. Earned wage access services offered and provided
by a licensee under the provisions of the Earned Wage Access
Services Act shall not be considered:
(1) in violation of or noncompliance with laws
governing deductions from wages or the purchase, sale or
assignment of, or an order for, earned but unpaid income;
(2) a loan or other form of credit or debt,
nor shall the provider be considered a creditor, debt collector
or lender with respect thereto; or
(3) money transmission, nor shall the provider
be considered a money transmitter with respect thereto."
SECTION 4. A new Section 58-34-4 NMSA 1978 is enacted to
read:
"58-34-4. [NEW MATERIAL ] PROVIDER LICENSE--APPLICATION
FOR ORIGINAL LICENSE--DIVISION POWERS AND DUTIES.--
A. Application for an original license shall be in
a form and manner prescribed by the division and shall include:
(1) the address of the applicant's principal
place of business within or without New Mexico and whether the
business will be conducted online or in-person;
(2) if applicable, the physical location and
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mailing address where the business is to be conducted in New
Mexico;
(3) identification of all parties in interest
and the names and addresses of all partners, officers and
directors as this will provide the basis for an investigation
and findings required by the provisions of this section;
(4) the name of a New Mexico resident who
serves as the provider's agent for service of process; provided
that if the provider's agent changes, the provider shall notify
the division within five working days of the change; and
(5) such other relevant information as the
division requires.
B. An application fee for original licensure shall
be submitted with the application.
C. Upon the filing of an application, the division
shall investigate the facts concerning the application and the
requirements of the Earned Wage Access Services Act. The
division may request additional information that is relevant or
helpful in conducting the application investigation. Upon
service of a written notice of a request for additional
information, the applicant has twenty days to provide the
information unless the division grants a request for a time
extension. The applicant shall furnish in writing, under oath,
to the director all additional information required by the
director that may be relevant or, in the opinion of the
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director, helpful in conducting the investigation.
D. Failure to comply with the division's
requirement for supplemental information or the willful
furnishing of false information is sufficient grounds for
denial of a license.
E. The division shall grant or deny each
application for an original license within sixty days from the
filing of the application with the required information and
fees, unless the period is extended by written agreement
between the applicant and the director.
F. After investigation, the division shall grant a
license if it finds that:
(1) the financial responsibility, character
and general fitness of the applicant for an original license,
including the individual members and beneficiaries of the
license if the applicant is a copartnership, association or
trust and including the individual officers and directors of
the applicant if the applicant is a corporation, are such as to
command the confidence of the public and to warrant belief that
the business will be operated lawfully, honestly, fairly and
efficiently within the declared purposes and spirit of the
Earned Wage Access Services Act;
(2) allowing the applicant to engage in
business promotes the convenience and advantage of the
community in which the business of the applicant is to be
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conducted; and
(3) the applicant has available for operation
of the business cash or its equivalent in convertible
securities or receivables of thirty thousand dollars ($30,000)
or any combination of securities and receivables.
G. If the division does not make the findings
enumerated in Subsection F of this section, the division shall
deny the application, notify the applicant of the denial and
retain the application fee. Within thirty days after the
denial of licensure, the division shall prepare written
investigatory findings as to the reason for denying the license
and deliver a copy to the applicant. If licensure is denied,
the applicant may request a hearing as provided in the Uniform
Licensing Act.
H. The denial of a license after a hearing is a
final agency action and may be appealed as provided by Section
39-3-1.1 NMSA 1978."
SECTION 5. A new Section 58-34-5 NMSA 1978 is enacted to
read:
"58-34-5. [NEW MATERIAL ] LICENSE INFORMATION.--
A. Each license issued pursuant to the Earned Wage
Access Services Act is an annual license that expires on July 1
following the issuance of the license unless renewed upon
application or suspended or revoked or unless the provider
surrenders the license when closing a location or provider's
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business.
B. Each license shall state:
(1) fully the name of the provider if an
individual; the name, date and place of incorporation if a
corporation or similar organization; and the names of all
copartners and all members and beneficiaries if a
copartnership, trust, association or similar organization; and
any trade name approved by the division under which the
provider is conducting business;
(2) whether the provider's business is
conducted online, in-person or a combination of online and in-
person; and
(3) the address of the provider's principal
place of business within or without New Mexico and each
physical location in New Mexico.
C. The license shall be conspicuously posted in the
provider's principal place of business and all other locations
of the business in New Mexico.
D. If a provider changes its principal place of
business or business location in New Mexico, it shall give
written notice of the change to the division within fifteen
days of the change.
E. Except as a stockholder in a corporation
licensed as a provider, a person whose name does not
specifically appear on the face of the license shall not have
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or hold any interest, direct or indirect, in any license or
provider and shall not be deemed a licensee or a provider.
F. Every provider shall maintain at all times cash
or its equivalent, convertible securities or receivables, or
any combination of these, of at least thirty thousand dollars
($30,000)."
SECTION 6. A new Section 58-34-6 NMSA 1978 is enacted to
read:
"58-34-6. [NEW MATERIAL ] LICENSE RENEWAL--DENIAL--
HEARING.--
A. A written application for license renewal shall
be filed with the division on or before April 1 of each year
for the annual renewal date of July 1. The application shall
be in a form and manner required by the division.
B. The division shall investigate the facts and
review the files of examinations of the provider made by the
division and complaints filed by consumers or other persons, if
any. The division shall issue a renewal license to the
provider if the division finds that:
(1) no valid complaints of violations or
abuses of the Earned Wage Access Services Act or of rules
promulgated in accordance with that act have been filed by
consumers or other persons;
(2) examinations, if any, of the affairs of
the provider indicate that the business has been conducted and
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operated lawfully and efficiently within the declared purposes
and spirit of that act; and
(3) the financial responsibility, experience
and general fitness and character of the provider remain such
as to command the confidence of the public and to warrant the
belief that the business will continue to be operated lawfully
and efficiently within the purposes and spirit of that act.
C. If the division finds that the provider does not
meet the qualifications for a renewal license enumerated in
Subsection A of this section and other provisions of the Earned
Wage Access Services Act, the director may grant a temporary
extension of the license not exceeding sixty days pending a
hearing. The division shall set a date for hearing on the
license renewal and shall notify the provider. The notice
shall specify the particular complaints, violations or abuses
or other reasons for the division's contemplated refusal to
renew the license.
D. At the hearing, the attorney or other agent of
the division shall produce evidence to establish the truth of
the charges in complaints of violations, abuses or other
grounds specified in the notice, and the provider shall be
accorded the right to produce evidence or other matters of
defense. If, after the hearing, the director finds that the
complaints of violations, abuses or other grounds specified in
the notice are not well-founded, the division shall issue the
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renewal license. If the director finds that the complaints of
violations, abuses or other grounds are well-founded, the
director shall deny the renewal application, notify the
provider of the denial and return the renewal fee tendered with
the application. Within thirty days after the denial of
renewal, the division shall prepare written findings and shall
deliver a copy of the findings to the provider. The denial of
renewal is a final agency action and may be appealed as
provided by Section 39-3-1.1 NMSA 1978. The court in its
discretion and upon proper showing may order a temporary
extension of the license pending disposition of the appeal."
SECTION 7. A new Section 58-34-7 NMSA 1978 is enacted to
read:
"58-34-7. [NEW MATERIAL ] LICENSE SUSPENSION OR
REVOCATION.--
A. The division may suspend or revoke a license for
cause. Prior to suspension or revocation, the division shall
give written notice by registered mail that states in general
the grounds for suspension or revocation and the time and place
of a public hearing, which shall be held not less than fifteen
days after the returned receipt of mail delivery. The hearing
shall be conducted in the same manner as hearings for license
denial.
B. After a hearing, the division shall suspend or
revoke a license if the director finds that:
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(1) the provider has violated a provision of
the Earned Wage Access Services Act or a rule promulgated in
accordance with that act, either knowingly or without the
exercise of due care to prevent a violation; or
(2) facts or conditions existed at the time of
the proposed suspension or revocation that, if they had existed
at the time of the original application or renewal of the
license, clearly would have justified the director in refusing
originally to issue the license or later to renew the license.
C. The division may suspend a license during a
revocation case if the director finds that, based on
preliminary evidence, suspension of the license is necessary to
protect the interests of consumers and the public. Upon notice
of the division's contemplated action to suspend the license,
the provider may request a hearing within three days after
notice has been received by registered mail. If the director
finds that probable cause for revocation of a license exists
and that enforcement of the Earned Wage Access Services Act
requires immediate suspension of the license pending
investigation, the director may, upon three days' notice by
registered mail and a hearing, suspend the license. Suspension
of a license pursuant to this subsection shall not exceed
thirty days.
D. Whenever the director suspends or revokes a
license issued pursuant to the Earned Wage Access Services Act,
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the director shall enter an order to that effect and
immediately notify the licensee in writing by registered mail
of the suspension or revocation, which notice shall state the
grounds for the action.
E. A provider shall surrender a license by
delivering it to the director with written notice of its
surrender, but such surrender shall not affect any civil or
criminal liability for acts committed prior to surrender.
F. Suspension or revocation of a license shall not
impair or affect the obligation of a preexisting lawful
contract between the provider and an obligor.
G. The division may reinstate a suspended license
or issue a new license to the provider whose license has been
revoked if facts or conditions that existed at the time of
suspension or revocation have been corrected.
H. False or misleading information willfully and
intentionally furnished to the division prior to the issuance
of a renewal license is grounds for denial of renewal or
suspension or revocation of a license."
SECTION 8. A new Section 58-34-8 NMSA 1978 is enacted to
read:
"58-34-8. [NEW MATERIAL ] SERVICE OF NOTICE.--When in the
Earned Wage Access Services Act provision is made for service
of notice by registered mail, such service is deemed complete
upon receipt of the notice by the intended recipient. For the
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purposes of this section, mailing of notice shall be addressed
to the person designated as the agent for service of process or
the manager or person in charge of the licensed office, if
applicable."
SECTION 9. A new Section 58-34-9 NMSA 1978 is enacted to
read:
"58-34-9. [NEW MATERIAL ] FEES.--The following fees shall
be collected and deposited into the division's suspense account
as provided in Section 9-16-14 NMSA 1978:
A. application fee, not to exceed one thousand
dollars ($1,000);
B. original and annual renewal license fee, not to
exceed five hundred dollars ($500);
C. late renewal fee, ten dollars ($10.00) per day
for each day the provider fails to file the license renewal
application; and
D. annual examination fee, not to exceed two
hundred dollars ($200)."
SECTION 10. A new Section 58-34-10 NMSA 1978 is enacted
to read:
"58-34-10. [NEW MATERIAL ] INVESTIGATIONS--EXAMINATION OF
BOOKS, RECORDS AND OTHER INFORMATION--ENTRY TO PREMISES.--
A. To discover violations of the Earned Wage Access
Services Act or to secure information lawfully required under
that act, the division may investigate the provider's business
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and may examine the books, papers, records, accounts, written
instruments and documents used in the business and including
income tax returns or other reports filed with the taxation and
revenue department of:
(1) a provider;
(2) a person participating in the provider's
business as principal, agent, broker or otherwise; and
(3) a person whom the division has reasonable
cause to believe is violating a provision of the Earned Wage
Access Services Act, whether the person claims to be within the
authority or beyond the scope of that act.
B. To facilitate examinations and investigations by
the division and fully disclose the operations and methods of
operation of each provider's conduct in New Mexico, the
provider shall keep on file as part of the records of the
provider all office manuals, communications or directives
containing statements of earned wage access services policies
to managers and employees.
C. The division shall be given free access to the
transactions, books, papers, records, accounts, written
instruments and documents of the provider insofar as they
pertain to the business licensed pursuant to the Earned Wage
Access Services Act and has authority to require the attendance
of any person and to examine the person under oath relative to
earned wage access services or to the subject matter of any
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examination, investigation or hearing as provided in that act.
Notices to appear before the director for examination under
oath may be served by registered mail. If the party notified
to appear is the provider, any person named on the face of the
license being investigated or an agent, employee or manager of
the provider or person and the party fails to appear for
examination or refuses to answer questions submitted, the
director may, forthwith and without further notice to the
provider, suspend the license involved pending compliance with
the notice. Upon failure of another person to appear or to
answer questions, the director may apply to the district court
to compel the attendance and testimony of the person and the
production of books, papers, records, accounts, written
instruments and documents relating to the business of the
licensee. The district court may punish the person for
contempt of court in a case of refusal to obey an order of the
district court issued to compel the attendance of the person or
the production of books, papers, records, accounts, written
instruments and documents.
D. Within a reasonable time after the completion of
an examination of a provider, the division shall mail to the
provider a copy of the report of the examination, together with
any comments, exceptions, objections or criticisms concerning
the conduct of the provider.
E. For the purposes of this section, a person who
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advertises, solicits or makes any representation as being
willing to engage in business as a provider, except persons or
financial institutions expressly excluded from the definition
of a provider pursuant to Section 58-34-2 NMSA 1978 or
expressly exempted pursuant to Section 58-34-3 NMSA 1978, is
presumed to be engaged in the business of a provider and shall
be subject to investigation pursuant to this section.
F. The division shall prescribe rules of procedure
for all hearings, examinations or investigations provided for
in the Earned Wage Access Services Act. The division is not
bound by the usual common law or statutory rules of evidence or
by any technical or formal rules of procedure or pleading and
specification of charges other than as specifically provided in
the Earned Wage Access Services Act but may conduct hearings,
examinations and investigations in the manner best calculated
to ascertain the substantial rights of interested parties.
G. The division has the power to administer oaths,
certify official acts and records of the division, issue
subpoenas for witnesses in the name of and under the seal of
the division and compel the production of papers, books,
accounts, records, written instruments and documents. The
division shall issue subpoenas at the instance of a party to a
hearing before the division upon payment of a fee of two
dollars fifty cents ($2.50) for each subpoena so issued.
H. Depositions may be taken with or without a
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commission, and written interrogatories may be submitted in the
same manner and on the same grounds provided by law for the
taking of depositions or submission of written interrogatories
in civil actions pending in the district courts.
I. Each witness who appears before the division by
the director's order shall receive the fees and mileage
provided for witnesses in civil actions in the district court.
Fees and mileage shall be paid by the state, but no witness
subpoenaed at the instance of parties other than the director
is entitled to compensation from the state for attendance or
mileage unless the director certifies that the witness's
testimony is material.
J. Whenever the division has reasonable cause to
believe that a person is violating a provision of the Earned
Wage Access Services Act, the director may, in addition to all
other actions provided for in that act and without prejudice,
enter an order requiring the person to desist or to refrain
from the violation. An action may be brought on the relation
of the attorney general and the division to enjoin the person
from engaging in or continuing the violation or from doing any
act in furtherance of the violation. In such action, an order
or judgment may be entered awarding a preliminary or final
injunction as may be deemed proper. In addition to all other
means provided by law for the enforcement of a temporary
restraining order, temporary injunction or final injunction,
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the court in which such action is brought shall have power and
jurisdiction to impound and to appoint a receiver for the
property and business of the defendants, including books,
papers, accounts, records, written instruments and documents
pertaining to the property and business or so much as the court
deems reasonably necessary to prevent further violations of
that act through or by means of the use of the property and
business. The receiver, when appointed and qualified, shall
have powers and duties as to custody, collection,
administration, winding up and liquidation of the property and
business as are from time to time conferred upon the receiver
by the court."
SECTION 11. A new Section 58-34-11 NMSA 1978 is enacted
to read:
"58-34-11. [NEW MATERIAL ] RECORDS RETENTION.--
A. Each provider shall keep and use in the business
such books, accounts and records in accordance with sound
accounting practices that enable the division to determine
whether the provider is complying with the provisions of the
Earned Wage Access Services Act and with the rules promulgated
in accordance with that act and orders of the director. Each
provider shall preserve the books, accounts and records for at
least two years after making the final entry on an earned wage
access service transaction.
B. At the time a license is in effect, the division
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may, upon written notice, require a provider to furnish within
twenty days in writing, and under oath if so specified by any
written notice issued and served by the director upon the
provider, additional information as to ownership; operations;
books, papers, accounts, records, written instruments and
documents; and affiliation or relationship with any other
person as may be helpful in the discharge of the division's
duties.
C. False or misleading information willfully
furnished to the director by a provider in an annual report or
pursuant to a notice or requirement of the director is
sufficient grounds for suspension and revocation of the
provider's license."
SECTION 12. A new Section 58-34-12 NMSA 1978 is enacted
to read:
"58-34-12. [NEW MATERIAL ] PROVIDER DUTIES--TIPS,
GRATUITIES OR OTHER DONATIONS.--
A. A provider shall do all of the following:
(1) develop and implement policies and
procedures to respond to questions raised by consumers and
address complaints from consumers in an expedient manner;
(2) when offering a consumer the option to
receive proceeds for a fee, offer to the consumer at least one
reasonable option to obtain proceeds at no cost to the consumer
and clearly explain how to elect that no-cost option;
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(3) before entering into an agreement with a
consumer for the provision of earned wage access services, do
all of the following:
(a) inform the consumer of the
consumer's rights under the agreement; and
(b) fully and clearly disclose all fees
associated with the earned wage access services;
(4) inform the consumer of any material
changes to the terms and conditions of the earned wage access
services before implementing those changes for that consumer;
(5) allow the consumer to cancel use of the
provider's earned wage access services at any time, without
incurring a cancellation fee imposed by the provider;
(6) comply with all applicable federal, state
and local privacy and information security laws or ordinances;
(7) if a provider solicits, charges or
receives a tip, gratuity or other donation from a consumer, the
provider shall do all of the following:
(a) clearly and conspicuously disclose
to the consumer immediately prior to each transaction that a
tip, gratuity or other donation amount may be zero and is
voluntary; and
(b) clearly and conspicuously disclose
in its service contract with the consumer and elsewhere that
tips, gratuities or donations are voluntary and that the
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offering of earned wage access services, including the amount
of proceeds a consumer is eligible to request and the frequency
with which proceeds are provided to a consumer, is not
contingent on whether the consumer pays any tip, gratuity or
donation or on the size of the tip, gratuity or donation;
(8) provide proceeds to a consumer by the
means mutually agreed upon by the consumer and the provider;
and
(9) if the provider will seek repayment of
outstanding proceeds or payment of fees or other amounts owed,
including voluntary tips, gratuities or donations from a
consumer's account at a depository institution, including by
means of electronic fund transfer, the provider shall do all of
the following:
(a) comply with applicable provisions of
the federal Electronic Fund Transfer Act and regulations
promulgated pursuant to that act; and
(b) reimburse the consumer for the full
amount of an overdraft or nonsufficient funds fees imposed on a
consumer by the consumer's depository institution that were
caused by the provider attempting to seek payment of
outstanding proceeds, fees or other payments, including
voluntary tips, gratuities or other donations, on a date
before, or in an incorrect amount from, the date or amount
disclosed to the consumer; provided, however, the provider is
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not subject to the requirements of this paragraph with respect
to payments of outstanding proceeds or fees incurred by a
consumer through fraudulent or other unlawful means.
B. A provider shall not do any of the following:
(1) share with an employer a portion of any
fees, voluntary tips, gratuities or other donations that were
received from or charged to a consumer for earned wage access
services;
(2) require a consumer's credit report or a
credit score provided or issued by a consumer reporting agency
to determine a consumer's eligibility for earned wage access
services;
(3) accept payment of outstanding proceeds,
fees, voluntary tips, gratuities or other donations from a
consumer by means of a credit card or charge card;
(4) charge a consumer a late fee, deferral
fee, interest or any other penalty or charge for failure to pay
outstanding proceeds, fees, voluntary tips, gratuities or other
donations;
(5) report to a consumer reporting agency or
debt collector any information about the consumer regarding the
inability of the provider to be repaid outstanding proceeds,
fees, voluntary tips, gratuities or other donations;
(6) compel or attempt to compel payment by a
consumer of outstanding proceeds, fees, voluntary tips,
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gratuities or other donations to the provider through any of
the following means:
(a) a suit against the consumer in a
court of competent jurisdiction;
(b) use of a third party to pursue
collection from the consumer on the provider's behalf; and
(c) sale of outstanding proceeds, fees,
voluntary tips, gratuities or other donations to a third-party
collector or debt buyer for collection from a consumer;
(7) if the provider solicits, charges or
receives tips, gratuities or other donations from a consumer,
mislead or deceive a consumer about the voluntary nature of the
tips, gratuities or other donations or represent that they will
benefit any specific persons or group of persons; and
(8) charge and receive a fee in excess of
seven dollars fifty cents ($7.50) per transaction in connection
with a fee described in Subsection K of Section 58-34-2 NMSA
1978.
C. The limitations set forth in Paragraph (6) of
Subsection B of this section do not preclude the use by a
provider of any of the methods specified in that paragraph to
compel payment of outstanding proceeds or fees incurred by a
consumer through fraudulent or other unlawful means, nor do
they preclude a provider from pursuing an employer for breach
of its contractual obligations to the provider.
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D. A provider may use the mailing address or state
of residence provided to the provider by a person to determine
the person's state of residence for purposes of the Earned Wage
Access Services Act."
SECTION 13. A new Section 58-34-13 NMSA 1978 is enacted
to read:
"58-34-13. [NEW MATERIAL ] ANNUAL REPORTS.--
A. Providers shall file with the division each year
reports containing at least the following information for the
preceding calendar year ending March 31 in an aggregated,
nonidentifying consumer manner as specified below:
(1) gross revenue attributable to its earned
wage access services;
(2) the total number of transactions in which
the provider provided proceeds to consumers;
(3) the total number of unique consumers to
whom the provider provided proceeds;
(4) the total dollar amount of proceeds the
provider provided to consumers;
(5) the total dollar amount of fees, voluntary
tips, gratuities or other donations the provider received from
consumers; and
(6) any other information the division
reasonably requires.
B. The reports shall be submitted to the division
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on or before March 31 each year.
C. The reports shall be accompanied by a sworn
statement by the provider under penalty of perjury that the
report is complete and accurate.
D. A provider that fails to timely submit complete
and accurate reports on or before March 31 may:
(1) be fined an amount not to exceed one
hundred dollars ($100) per day for each day after March 31 that
a complete and accurate report is not filed; and
(2) have a license suspended pursuant to
Section 58-34-7 NMSA 1978."
SECTION 14. A new Section 58-34-14 NMSA 1978 is enacted
to read:
"58-34-14. [NEW MATERIAL ] LIST OF PROVIDERS--
COMPLAINTS--DIVISION ANNUAL REPORTS--PUBLICATION.--
A. The division shall:
(1) maintain a list of providers, which list
shall be available to interested persons and the public; and
(2) establish a complaint process whereby an
aggrieved consumer or other person may file a complaint against
a provider.
B. The division shall compile from reports filed by
providers an annual report by July 1 of each year containing
data regarding earned wage access services conducted by
providers, which data shall be aggregated for all providers and
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nonidentifiable by provider. Annual reports issued by the
division shall be transmitted to the governor and the
legislature and shall be published on the division's website.
Written copies of the annual reports shall be made available
upon request. Consistent with state law, the report shall
include, at a minimum, nonidentifying aggregated consumer data
from the preceding calendar year, including each of the
specific categories of information set forth in Subsection A of
Section 58-34-12 NMSA 1978."
SECTION 15. A new Section 58-34-15 NMSA 1978 is enacted
to read:
"58-34-15. [NEW MATERIAL ] EXCLUSIVE JURISDICTION OF
STATE.--The state has exclusive jurisdiction and authority
regarding the Earned Wage Access Services Act and providers.
Political subdivisions of the state are preempted from any
regulation of earned wage access services providers by
ordinance, resolution or otherwise."
SECTION 16. A new Section 58-34-16 NMSA 1978 is enacted
to read:
"58-34-16. [NEW MATERIAL ] RULES AND ORDERS.--
A. The division has authority to make reasonable
rules or orders for the administration and enforcement of the
Earned Wage Access Services Act.
B. On application of a person and payment of the
cost, the division shall furnish, under the division's seal and
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signed by the director or the director's authorized
representative, a certified copy of a license, rule or order.
In a court or proceeding, the copy shall be prima facie
evidence of the fact of the issuance of a license, rule or
order."
SECTION 17. A new Section 58-34-17 NMSA 1978 is enacted
to read:
"58-34-17. [NEW MATERIAL ] ADVERTISING--FALSE CLAIMS--
REFERRAL TO STATE SUPERVISION.--A provider or other person
subject to the Earned Wage Access Services Act shall not
advertise, display, distribute or broadcast or cause or permit
to be advertised, displayed, distributed or broadcast in any
manner whatsoever a false, misleading or deceptive statement or
representation with regard to its earned wage access services.
The division may allow or require providers to refer in their
advertising to the fact that their business is under state
supervision, subject to conditions imposed by the division to
prevent erroneous impressions as to the scope or degree of
protection provided by the Earned Wage Access Services Act."
SECTION 18. A new Section 58-34-18 NMSA 1978 is enacted
to read:
"58-34-18. [NEW MATERIAL ] BUSINESS UNDER APPROVED
NAME.--A provider shall not conduct earned wage access services
as provided by the Earned Wage Access Services Act under any
name other than the name approved by the division and stated on
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the license."
SECTION 19. A new Section 58-34-19 NMSA 1978 is enacted
to read:
"58-34-19. [NEW MATERIAL ] FINAL ACTIONS APPEALABLE TO
DISTRICT COURT.--A provider or other person aggrieved by a
final action of the division pursuant to the Earned Wage Access
Services Act may file an appeal in the district court as
provided by Section 39-3-1.1 NMSA 1978."
SECTION 20. A new Section 58-34-20 NMSA 1978 is enacted
to read:
"58-34-20. [NEW MATERIAL ] CONTRACTS NOT AFFECTED BY ACT
AMENDMENT OR REPEAL.--If the Earned Wage Access Services Act or
any part of that act is amended or repealed so as to effect a
cancellation or alteration of a license or right of a provider,
such amendment or repeal shall not impair or affect the
obligation of any preexisting lawful contract between a
provider and a consumer."
SECTION 21. A new Section 58-34-21 NMSA 1978 is enacted
to read:
"58-34-21. [NEW MATERIAL ] DIVISION RECORDS.--The
division shall keep a detailed record of all fees, expenses and
costs collected by the division and a detailed record of all
expenses and disbursements of the division in the
administration of the Earned Wage Access Services Act and rules
promulgated in accordance with that act."
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SECTION 22. A new Section 58-34-22 NMSA 1978 is enacted
to read:
"58-34-22. [NEW MATERIAL ] VIOLATIONS OF ACT--PENALTY.--
A provider and the several members, beneficiaries, officers,
directors, agents and employees of a provider who violate or
participate in the violation of any provision of the Earned
Wage Access Services Act are guilty of a petty misdemeanor
violation and upon conviction shall be punished by a fine of
not less than five hundred dollars ($500) or more than one
thousand dollars ($1,000)."
SECTION 23. APPLICABILITY.--The provisions of this act
apply to earned wage access service providers issued licenses
on or after October 15, 2025.
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