CFPB Reestablishes Position That Certain Earned Wage Access Programs Are Not “Credit”

On December 23, 2025, the Consumer Financial Protection Bureau (CFPB or “Bureau”) published an advisory opinion (the “2025 EWA Advisory Opinion”) concluding that certain earned wage access (EWA) programs do not constitute “credit” under the Truth in Lending Act (TILA) and Regulation Z. EWA, which has grown increasingly popular over the past several years, allows consumers to access a portion of wages that they have already earned but not received, prior to their scheduled payment date. These products are often used by consumers to help meet short-term liquidity needs. The CFPB’s new advisory opinion represents a notable shift in the Bureau’s approach to EWA programs and signifies a new direction for the Bureau in this rapidly growing industry.

Building on—and expanding—the CFPB’s 2020 advisory opinion addressing certain employer-sponsored EWA programs, the 2025 EWA Advisory Opinion shifts the analytical focus from the existence of an employer partnership to the method of repayment. In particular, the Bureau emphasizes repayment through payroll deduction as a key determinant in assessing whether EWA constitutes credit. The 2025 EWA Advisory Opinion also rescinds a proposed interpretive rule from 2024 that would have classified EWA as credit under TILA and Regulation Z.

This advisory opinion departs from positions taken by the CFPB under the prior administration. It benefits EWA providers operating amid an evolving regulatory landscape and prior unfavorable judicial signals regarding whether EWA constitutes credit.[1]

A Shifting Regulatory Landscape

The CFPB’s view on EWA has evolved significantly over the past several years.

• December 2020: The CFPB issued an advisory opinion concluding that certain no-cost, employer-partnered EWA programs do not constitute credit under TILA and Regulation Z, provided the advances: (1) were limited to accrued wages, (2) were non-recourse, (3) were repaid through payroll deduction, and (4) did not consider a consumer’s credit risk.

• July 2024: The CFPB issued an interpretive rule stating that EWA generally falls within TILA’s definition of credit, subjecting it to TILA disclosure requirements, when advances were based on accrued wages and repaid automatically to a third party. The CFPB also stated that expedited transfer fees and tips—which are common in the EWA industry—could constitute finance charges.

• January 2025: Shortly before the change in administration, the CFPB issued an advisory opinion that rescinded the 2020 EWA Advisory Opinion.

• May 2025: The CFPB rescinded its January 2025 advisory opinion, effectively reinstating the 2020 EWA Advisory Opinion and signaling a renewed shift in the Bureau’s approach, culminating in the issuance of the 2025 EWA Advisory Opinion.

• December 2025: The CFPB issued the 2025 EWA Advisory Opinion discussed here, which concludes that certain EWA programs do not constitute “credit” under the TILA and Regulation Z.

When EWA Is Not Credit

The 2025 EWA Advisory Opinion concludes that EWA is not credit when certain conditions are met, most notably, when the advance is repaid through a payroll deduction. In addition, several other requirements must be met that are largely consistent with those identified in the 2020 EWA Advisory Opinion. These include the following:

• The amount advanced does not exceed accrued wages;
• The advance is non-recourse—that is, the provider does not seek repayment beyond the payroll deduction, does not refer the obligation to a third-party debt collector or credit reporting agency, and clearly discloses these limitations to the consumer; and
• The employee’s credit risk is not evaluated.

The CFPB refers to an EWA that meets these criteria as a “Covered EWA Program.” According to the Bureau, a Covered EWA Program does not constitute credit because the consumer neither defers, nor obtains a right to defer, repayment of a debt—which is an essential element of credit under TILA. The CFPB further emphasized that a Covered EWA Program simply provides employees earlier access to wages they are already owed.

Key Differences from the 2020 Advisory Opinion

Although the 2020 and 2025 EWA advisory opinions conclude that certain EWA is not credit, the 2025 EWA Advisory Opinion expands the scope of qualifying programs in important ways.

First, unlike the 2020 EWA Advisory Opinion, an EWA need not be free to fall outside the definition of credit. The CFPB clarified that the presence of a fee is relevant to determining whether a finance charge is imposed or whether an entity is a “creditor,” but not to whether the underlying product is credit in the first instance.

Second, the 2025 EWA Advisory Opinion does not treat an employer partnership as determinative. Instead, the Bureau focuses on whether repayment occurs through payroll deduction, expanding the definition of Covered EWA Program to include programs that are not offered through an employer partner, so long as the payroll-deduction and other applicable criteria are met.

Treatment of Expedited Payment Fees and Tips

The 2025 EWA Advisory Opinion also addresses expedited payment fees and tips, which are common in the EWA industry.

For a Covered EWA Program, the CFPB concluded that expedited payment fees and tips are not finance charges because the underlying advance is not credit. For a non-Covered EWA Program, however, such payments may—but do not necessarily—constitute finance charges, depending on the facts and circumstances.

In reaching this conclusion, the CFPB relied on a 2003 Federal Reserve Board rule and Eleventh Circuit precedent. The 2003 rule noted that expedited fees, including expedited payment fees, are not finance charges where the consumer has an alternative available that does not carry a fee, or where the consumer affirmatively requests the expedited service.

The Eleventh Circuit similarly noted that an expedited fee is not incident to an extension of credit—and therefore not a finance charge—where the fee is not required, and the consumer can choose to avoid it. The Bureau cautioned, however, that expedited fees could be considered finance charges under certain circumstances, such as where a provider makes it unduly difficult for consumers to receive funds through a non-expedited option.

The CFPB took a similar approach to tips, stating that they are generally not finance charges because they are not imposed on the employee. However, tips could be treated as finance charges if they are effectively unavoidable or difficult to decline. In both cases, the analysis is highly fact-specific.

Key Takeaways

The 2025 EWA Advisory Opinion provides additional clarity to consumers and to the EWA industry, more broadly. Recently, district courts have allowed TILA claims against EWA providers to proceed past the motion-to-dismiss stage, creating uncertainty around whether EWA could be treated as credit. The CFPB’s new guidance makes such challenges more difficult by expressly concluding that certain EWA Programs are not credit—an essential predicate for TILA liability. This clarification may encourage broader adoption of EWA programs by reducing litigation risk for providers and increasing employer comfort with offering such programs.

That said, the 2025 EWA Advisory Opinion does not eliminate all uncertainty. It applies only to a Covered EWA Program. EWA products that do not rely on payroll deduction or fail to meet the other identified criteria remain in a regulatory gray area, with limited clarity as to whether they are subject to TILA and its disclosure requirements. Additionally, the 2025 EWA Advisory Opinion is non-binding, meaning that states may continue to take their own approaches, such as California’s DFPI regulating earned wage access through rulemaking under its California Consumer Financial Protection Law authority, and the New York legislature pursuing a parallel path through state EWA legislation.[2]

We will continue to monitor developments in this area.

[1] See e.g., Vickery v. Empower Fin., Inc., 2025 WL 2841686 (N.D. Cal. Oct. 7, 2025); Moss v. Cleo AI Inc., No. 2:25-cv-00879-MLP (W.D. Wash. Sept. 8, 2025).

[2] Cal. Code Regs. tit. 10, § 1010; A.B. A258A, 2025–2026 Legis. Sess., (N.Y. 2025).