House Amendment 1
S 700 - Session 125 (2023-2024)
Earned Wage Access Services Act

The Committee on Labor, Commerce and Industry proposes the following amendment (LC-700.SA0005H):

Amend the bill, as and if amended, SECTION 1, by striking Section 39-5-820(1) and inserting:

 (1) "Consumer" means a natural person who works and resides in the State of South Carolina. A provider may use the work address and mailing address provided by a consumer to determine such consumer's state of employment and residence for purposes of this article.

Amend the bill further, SECTION 1, Section 39-5-820, by striking the first undesignated paragraph immediately after item (7) and inserting:

A voluntary tip or gratuity shall not be deemed to be a fee.

Amend the bill further, SECTION 1, by striking Section 39-5-840(7) and (8) and inserting:

 (7) If the provider solicits or receives a tip or gratuity from a consumer, the provider shall:
  (a) clearly and conspicuously disclose to the consumer immediately prior to each transaction that a tip or gratuity amount may be zero and is voluntary;
  (b) clearly and conspicuously disclose in its service contract with the consumer and elsewhere that tips or gratuities 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 or gratuitiy or on the size of the tip or gratuity;
  (c) not mislead or deceive consumers about the voluntary nature of such tips or gratuities; and
  (d) make no representations that tips or gratuities will benefit any specific individuals.
 (8) In any case in which a provider will seek repayment of outstanding proceeds, fees, or other payments, in connection with the activities covered by this article, including voluntary tips or gratuities from a consumer's account at a depository institution including via electronic transfer, the provider shall:
  (a) comply with applicable provisions of the federal Electronic Fund Transfer Act and its implementing regulations;
  (b) 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 article, including voluntary tips or gratuities, on a date before, or in an incorrect amount from, the date or amount disclosed to the consumer; and
  (c) not be subject to the requirements in subitem (b) with respect to payments of outstanding amounts or fees incurred by a consumer through fraudulent or other unlawful means.

Amend the bill further, SECTION 1, by striking Section 39-5-850(1) and inserting:

 (1) share with an employer any fees, voluntary tips or gratuities that were received from or charged to a consumer for earned wage access services;

Amend the bill further, SECTION 1, by striking Section 39-5-850(3) and inserting:

 (3) accept payment of outstanding proceeds, fees, voluntary tips, or gratuities from a consumer via credit card or charge card;

Amend the bill further, SECTION 1, by striking Section 39-5-850(9) and inserting:

 (9) compel or attempt to compel payment by a consumer of outstanding proceeds, fees, voluntary tips, or gratuities 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; or
  (c) sale of outstanding amounts to a third-party collector or debt buyer for collection from the consumer.
 However, the limitations in this item shall not preclude the use by a provider of any of these methods to compel payment of outstanding amounts or fees incurred by a consumer through fraudulent or other unlawful means, nor shall they preclude a provider from pursuing an employer for breach of its contractual obligations to the provider.

Amend the bill further, SECTION 1, by striking Section 39-5-860(C) and inserting:

 (C) Fees, voluntary tips, or gratuities paid by a consumer to a provider shall not be considered a loan finance charge for purposes of Section 37-3-109.