2023 Wisconsin Act 131

1. 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.

2. Clearly and conspicuously disclose in its service contract with the consumer and elsewhere that tips, gratuities, or donations are voluntary and that the 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 other donation or on the size of the tip, gratuity, or other donation.

(h) Provide proceeds to a consumer by any means mutually agreed upon by the consumer and the licensee.

(i) If the provider will seek repayment of outstanding proceeds or payment of fees or other amounts owed, including voluntary tips, gratuities, or other donations, in connection with the activities covered by this chapter, from a consumer's account at a depository institution, including by means of electronic funds transfer, the provider shall do all of the following:

1. Comply with applicable provisions of the federal electronic fund transfer act, 15 USC 1693 to 1693r, and regulations adopted under the act.

2. Reimburse the consumer for the full amount of any overdraft or non-sufficient funds fees imposed on a consumer by the consumer's depository institution that were caused by the provider attempting to seek payment of any outstanding proceeds, fees, or other payments, in connection with the activities covered by this chapter, 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. However, the provider is not subject to the requirements in this subdivision with respect to payments of outstanding amounts or fees incurred by a consumer through fraudulent or other unlawful means.

(2) A provider required to be licensed under s. 203.03 (1) may not do any of the following:

(a) 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.

(b) 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.

(c) Accept payment of outstanding proceeds, fees, voluntary tips, gratuities, or other donations from a consumer by means of a credit card or charge card.

(d) Charge 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.

(e) 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.

(f) Compel or attempt to compel payment by a consumer of outstanding proceeds, fees, voluntary tips, gratuities, or other donations to the provider through any of the following means:

1. A suit against the consumer in a court of competent jurisdiction.

2. Use of a 3rd party to pursue collection from the consumer on the provider's behalf.

3. Sale of outstanding amounts to a 3rd-party collector or debt buyer for collection from the consumer.

(g) If the provider solicits, charges, or receives tips, gratuities, or other donations from a consumer, mislead or deceive consumers about the voluntary nature of the tips, gratuities, or donations or make representations that tips, gratuities, or other donations will benefit any specific individuals.

(h) Advertise, print, display, publish, distribute, or broadcast or cause to be advertised, printed, displayed, published, distributed, or broadcast, in any manner, any statement or representation with regard to the earned wage access services offered by the provider, which is false, misleading, or deceptive, or which omits to state material information that is necessary to make the statements therein not false, misleading, or deceptive.

(3) The limitations set forth in sub. (2) (f) do not preclude the use by a provider of any of the methods specified in sub. (2) (f) to compel payment of outstanding amounts 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.

(4) A provider may use the mailing address provided by a consumer to determine the consumer's state of residence for purposes of this chapter.

203.06 Reporting requirements; books and records. (1) On or before July 1 of each year, a provider required to be licensed under s. 203.03 (1) shall submit an annual report to the division that includes all of the following information related to earned wage access services the provider provided in this state during the prior year:

(a) Gross revenue attributable to those earned wage access services.

(b) The total number of transactions in which the provider provided proceeds to consumers.

(c) The total number of unique consumers to whom the provider provided proceeds.

(d) The total dollar amount of proceeds the provider provided to consumers.

(e) The total dollar amount of fees, voluntary tips, gratuities, or other donations the provider received from consumers.

(2) Failure by a provider to submit a timely report as required under sub. (1) is grounds for disciplinary action by the division.

(3) The division shall keep confidential the information contained in the annual report under sub. (1), and this information is not subject to public copying or inspection under s. 19.35 (1), but the division may prepare and make publicly available an aggregated and anonymized analysis of the information submitted by all providers under this section.

(4) A provider required to be licensed under s. 203.03 (1) shall keep such books and records that, in the opinion of the division, will enable the division to determine whether the provider is in compliance with this chapter. The provider shall retain records related to proceeds for at least 2 years following the date on which proceeds are provided. The provider may keep books and records at a place of business located outside this state if the provider is able to readily produce those books and records for review by the division upon reasonable request by the division.

203.07 Suspension or revocation of license. (1) The division may suspend or revoke a provider's license issued under s. 203.03 (7) if the division finds any of the following:

(a) That the provider violated any provision of this chapter, any rule promulgated under this chapter, or any lawful order of the division made under this chapter.

(b) That any fact or condition exists that, if it had existed at the time of the provider's original application for a license, would have warranted the division refusing to issue the license.

(c) That the provider made a material misstatement in an application for a license or in information furnished to the division.

(d) That the provider failed to pay the annual license fee or to maintain in effect the bond required under s. 203.03 (6).

(2) The division shall revoke a provider's license issued under s. 203.03 (7) if the department of revenue certifies under s. 73.0301 that the provider is liable for delinquent taxes. A provider whose license is revoked under this subsection for delinquent taxes is entitled to a notice under s. 73.0301 (2) (b) 1. b. and a hearing under s. 73.0301 (5) (a) but is not entitled to any other notice or hearing under this chapter.

(3) The division shall revoke a provider's license issued under s. 203.03 (7) if the department of workforce development certifies under s. 108.227 that the provider is liable for delinquent unemployment insurance contributions. A provider whose license is revoked under this subsection for delinquent unemployment insurance contributions is entitled to a notice under s. 108.227 (2) (b) 1. b. and a hearing under s. 108.227 (5) (a) but is not entitled to any other notice or hearing under this chapter.

(4) Except as provided in subs. (2) and (3), the division may not revoke or suspend a provider's license except after a hearing under this chapter.

203.08 Violations and enforcement. (1) The division may bring a civil action to restrain by temporary or permanent injunction a person from violating this chapter or rules promulgated under this chapter or to restrain a person from engaging in false, misleading, deceptive, or unconscionable conduct in connection with offering earned wage access services.

(2) The division may seek a temporary restraining order without written or oral notice to the adverse party. If a court finds that there is reasonable cause to believe that the respondent is engaged in the conduct sought to be restrained and that such conduct violates this chapter or rules promulgated under this chapter, the court may grant a temporary restraining order or any temporary relief the court determines is appropriate. A temporary restraining order granted without notice shall expire by its terms within a stated time after entry, not to exceed 30 days, as the court fixes, unless within this time it is extended by the court, or unless the party against whom the order is directed consents that it may be extended for a longer period. When a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for a hearing at the earliest possible time. Upon notice to the party who obtained the temporary restraining order without notice, the adverse party may appear and move its dissolution or modification, and, in this event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

(3) The division may recover in a civil action from a person that violates this chapter or rules promulgated under this chapter a civil penalty of not less than $100 and not more than $1,000 for each violation.

(4) In addition to the amount to which the division is entitled under sub. (3), the division may recover in a civil action from a person that knowingly or willfully violates this chapter or rules promulgated under this chapter a civil penalty of not less than $1,000 and not more than $10,000 for each violation.

131,6 Section 6. 220.02 (2) (j) of the statutes is created to read:

220.02 (2) (j) Earned wage access services providers under ch. 203.

131,7 Section 7. 220.02 (3) of the statutes is amended to read:

220.02 (3) It is the intent of sub. (2) to give the division jurisdiction to enforce and carry out all laws relating to banks or banking in this state, including those relating to state banks, savings banks, savings and loan associations, and trust company banks, and also all laws relating to small loan companies or other loan companies or agencies, finance companies, insurance premium finance companies, earned wage access services providers, motor vehicle dealers, adjustment service companies, community currency exchanges, mortgage bankers, mortgage loan originators, mortgage brokers, and collection agencies and those relating to sellers of checks under ch. 217, whether doing business as corporations, individuals, or otherwise, but to exclude laws relating to credit unions.

131,7s Section 7s. 220.02 (3) of the statutes, as affected by 2023 Wisconsin Act .... (Senate Bill 668), is amended to read:

220.02 (3) It is the intent of sub. (2) to give the division jurisdiction to enforce and carry out all laws relating to banks or banking in this state, including those relating to state banks, savings banks, savings and loan associations, and trust company banks, and also all laws relating to small loan companies or other loan companies or agencies, finance companies, insurance premium finance companies, earned wage access services providers, motor vehicle dealers, adjustment service companies, community currency exchanges, mortgage bankers, mortgage loan originators, mortgage brokers, and collection agencies and those relating to money transmitters under ch. 217, whether doing business as corporations, individuals, or otherwise, but to exclude laws relating to credit unions.

131,8 Section 8 . Nonstatutory provisions.

(1) Earned wage access services.

(a) License application form. Not later than the first day of the 6th month beginning after the effective date of this paragraph, the division of banking in the department of financial institutions shall prescribe the form and content of an application for a license to provide earned wage access services pursuant to this act.

(b) Transitional provision. Notwithstanding s. 203.03 (1), a person who, as of January 1, 2023, was engaged in the business of providing in this state earned wage access services, as defined in s. 203.01 (6), may, until the first day of the 7th month beginning after the effective date of this paragraph, continue to engage in the business of providing earned wage access services in this state without obtaining a license if the person has submitted an application under s. 203.03 (2) for a license and otherwise complies with ch. 203.

(1s) Reconciliation provisions.

(a) If 2023 Senate Bill 668 is enacted into law, then the treatment of ss. 73.0301 (1) (d) 6. (by Section 1s), 108.227 (1) (e) 6. (by Section 2s), and 220.02 (3) (by Section 7s) and the renumbering of s. 138.09 (1a) (c) take effect on the effective date of 2023 Senate Bill 668 or on the effective date of this paragraph, whichever is later.

(b) If par. (a) does not apply, then the treatment of ss. 73.0301 (1) (d) 6. (by Section 1s), 108.227 (1) (e) 6. (by Section 2s), and 220.02 (3) (by Section 7s) and the renumbering of s. 138.09 (1a) (c) are void.

131,9 Section 9. Initial applicability.

(1) The treatment of s. 203.04 (1) (b) first applies, with respect to a provider that offers proceeds to a consumer under the terms of an agreement that specifies the consumer's cost of obtaining proceeds, to an agreement entered into on the effective date of this subsection.

131,10 Section 10. Effective dates. This act takes effect on the first day of the 6th month beginning after publication, except as follows:

(1) Section 8 (1 ) (a) of this act takes effect on the day after publication.