As part of a flurry of last minute regulatory activity by the Biden administration’s Consumer Financial Protection Bureau (CFPB or Bureau), on January 15, the CFPB published an advisory opinion in the Federal Register rescinding a previous advisory opinion which the Bureau issued during the first Trump administration in November 2020. The 2020 advisory opinion had described how a specific type of “earned wage” product did not constitute the offering or extension of “credit” under the Truth in Lending Act (TILA) and Regulation Z. The new advisory opinion is effective immediately.

The CFPB’s 2020 advisory opinion had distinguished between two models of earned wage products: employer-partnered and direct-to-consumer. Employer-partnered products involve agreements between providers and employers, with funds recovered through payroll deductions. Direct-to-consumer products, on the other hand, provide funds directly to employees, often recovered through automated bank account withdrawals. The 2020 opinion explained that an earned wage product is not TILA or Regulation Z credit if it meets all of several identified conditions, including: providing the consumer with no more than the amount of accrued wages earned; provision by a third party fully integrated with the employer; no consumer payment beyond recovery of paid amounts via a payroll deduction from the next paycheck, and no other recourse or collection activity of any kind; and no underwriting or credit reporting. The 2020 opinion was silent about whether earned wage products that do not meet all of these conditions were credit.

In July 2024, the CFPB proposed an interpretive rule on this topic and sought public comment. The CFPB’s January 15 publication notes that seeking public comment was “voluntary” and that the comment period closed on August 30, 2024, suggesting the Bureau views the interpretation as effective without further action.

Reasons for Rescission:

The CFPB identified two primary reasons for rescinding the 2020 advisory opinion:

  • Flawed Legal Analysis: The CFPB found that its legal analysis was significantly flawed. According to the Bureau, it did not adequately consider the meaning of “debt” under state law or other relevant legal bodies. Additionally, the CFPB stated that the opinion’s inference that consumers do not incur liability when using certain earned wage products was insufficiently justified. The opinion also apparently failed to consider all relevant factors in determining what constitutes “credit” under TILA and Regulation Z.
  • Regulatory Uncertainty: The CFPB found that its advisory opinion created substantial regulatory uncertainty. According to the Bureau, its narrow scope left many stakeholders speculating about the CFPB’s stance on various earned wage products. In the Bureau’s view, the opinion was also misinterpreted and cited for legal conclusions it did not reach.

Now that a new administration has begun, we will be carefully monitoring EWA developments from the CFPB. It currently remains unclear what, if any, actions the CFPB will take regarding the transactions and related interpretations.

Photo of Jason Cover Jason Cover

Jason’s in-depth experience advising on consumer lending matters both as in-house counsel and outside advisor provides extensive industry knowledge for his financial services clients.

Photo of Mark Furletti Mark Furletti

Mark helps clients navigate regulatory risks posed by state and federal laws aimed at protecting consumers and small business, particularly in connection with credit, deposit, and payments products. He is a trusted advisor, providing practical legal counsel and advice to providers of financial

Mark helps clients navigate regulatory risks posed by state and federal laws aimed at protecting consumers and small business, particularly in connection with credit, deposit, and payments products. He is a trusted advisor, providing practical legal counsel and advice to providers of financial services across numerous industries.

Photo of James Kim James Kim

As a former senior enforcement attorney with the CFPB, James provides the industry knowledge and expertise that fintechs and financial institutions require when launching new products or facing regulatory scrutiny.

Photo of Caleb Rosenberg Caleb Rosenberg

Caleb is counsel in the firm’s Consumer Financial Services Practice Group. He focuses his practice on helping federal and state-chartered banks, fintech companies, finance companies, and licensed lenders navigate regulatory risks posed by state and federal laws aimed at protecting consumers and small…

Caleb is counsel in the firm’s Consumer Financial Services Practice Group. He focuses his practice on helping federal and state-chartered banks, fintech companies, finance companies, and licensed lenders navigate regulatory risks posed by state and federal laws aimed at protecting consumers and small businesses in the credit and alternative finance products industry.

Photo of Jesse Silverman Jesse Silverman

Jesse provides practical and business-minded advice to clients in the financial services sector. With senior in-house and both state and federal government experience, he helps clients mitigate potential risks throughout their business cycle.

Photo of Carlin McCrory Carlin McCrory

A seasoned regulatory and compliance attorney, Carlin brings extensive experience representing financial institutions, fintechs, lenders, payment processors, neobanks, virtual currency companies, and mortgage servicers.

Photo of Keith J. Barnett Keith J. Barnett

Keith’s experience representing clients in the financial services industry as a litigation, compliance, regulatory, investigations (internal and regulatory), and enforcement attorney spans 20 years. Keith represents clients against government regulators (CFPB, FTC, SEC, CFTC), industry regulators (FINRA), and private litigants in federal courts…

Keith’s experience representing clients in the financial services industry as a litigation, compliance, regulatory, investigations (internal and regulatory), and enforcement attorney spans 20 years. Keith represents clients against government regulators (CFPB, FTC, SEC, CFTC), industry regulators (FINRA), and private litigants in federal courts, state courts, and before arbitration and administrative law panels in the financial services industry.