EWA fintech EarnIn evokes Constitution in fight over tips

• Key insights: EWA fintech EarnIn is suing Maryland over its law regulating the earned wage access industry, alleging that the state’s provision that prohibits EWA providers from soliciting tips violates the First Amendment.
• What’s at stake: Tipping practices have been a point of contention for the EWA industry, with critics arguing that they are coercive and even predatory. 

Earned wage access provider EarnIn is evoking the First Amendment in its fight against Maryland’s law that prohibits providers from soliciting tips. 

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Maryland’s is one of the few state regulations that classifies EWA as a loan. The bill regulating the industry went into effect in October 2025 and a follow-up law went into effect in October this year, prohibiting earned wage access providers from soliciting or receiving tips. It also requires those lenders to return any tip collected within seven days after receipt, and mandates that those lenders disclose the tip ban. 

EarnIn is suing the state, alleging that the statute violates the First Amendment of the U.S. Constitution, the due process clause of the 14th Amendment and the Civil Rights Act of 1871. 

“SB 94 is a content- and speaker-based restriction on protected speech that violates the First Amendment. EarnIn’s tip solicitations communicate a truthful, non-misleading message: that optional tips help support EarnIn’s mission of providing workers access to their own earned wages without mandatory fees or interest,” EarnIn Chief Legal & Regulatory Officer David Durant told American Banker in an email. 

“The law goes beyond regulating a financial service. It restricts what companies may truthfully say to their customers, and the choices customers may make in response,” Durant said. “Restricting protected speech in the name of consumer protection raises serious First Amendment concerns that should worry everyone, not just EarnIn.” 

The Maryland attorney general’s office did not respond to a request for comment. EarnIn is also involved in separate lawsuits with the Colorado attorney general and the D.C. AG that allege EarnIn is violating the state’s lending laws.  

Evoking free speech protections as a strategy to circumvent regulations is not a novel move, according to Amanda Shanor, associate professor of legal studies and business ethics at the University of Pennsylvania’s Wharton School, but it is one that has gained popularity over the last three decades. 

“Since the 1970s, but really since the 90s, businesses have increasingly sought First Amendment protection against a wide range of economic regulations,” Shanor told American Banker. 

Courts have historically categorized speech involving businesses and corporations into two types: commercial speech and political speech, according to David Schultz, a distinguished university professor of political science and legal studies at Hamline University. 

“Commercial speech generally includes advertising, solicitations for business, and other communications involving commercial transactions,” Schultz said. “Historically, the Supreme Court has given commercial speech less constitutional protection than political speech. The rationale is that the government needs some authority to regulate commercial communications to prevent false advertising, consumer fraud, and other deceptive business practices.” 

In evaluating whether commercial speech — such as whether a company is permitted to solicit tips — can be restricted, the constitution applies what’s called “intermediate scrutiny,” Shanor said. 

“Under intermediate scrutiny, the government has to show that they have a substantial interest that the law advances and is reasonably tailored,” Shanor said. “[For example], they don’t want businesses to exploit people, or they’re concerned about economic inequality, or they could say a bunch of things like that, and the law would probably survive.”  

Compelled speech from the government, such as requiring EarnIn to prominently disclose that it is prohibited from soliciting tips, gets even less scrutiny. 

“The government can make businesses say a lot of things,” Shanor said. “As long as the government is doing something rational, like making a business telling you what the law is, or telling you information about the product, or what your rights are, or what’s in the product, or that it might harm you, or other things like that.” 

But that does not mean that the government has not afforded free speech protections to corporations in the past, Schultz said, pointing to a series of Supreme Court decisions, including Citizens United v. Federal Election Commission, that recognized that corporations possess First Amendment rights to speak on matters of public concern and express political views. 

Other gray areas in compelled speech have also emerged. For example, in 2018, the Supreme Court struck down California law that would have required anti-abortion groups to disclose that they were not licensed medical facilities after the the groups successfully argued that those disclosures would place an undue burden on them. 

Still, Shanor and Schultz are both skeptical that EarnIn’s complaint will pass muster. 

“My initial inclination is to view this primarily as a commercial speech issue,” Schultz said. “However, even then, the constitutionality of the law would depend on its precise wording, the government’s justification, and whether the restriction is appropriately tailored to that justification.”

Direct-to-consumer EWA providers have long solicited voluntary tips from their customers, saying that those gratuities help them keep the basic service free. But those tips have — and continue to be — one of the more contested features of EWA, according to Benjamin Nestor, a strategic advisor at Datos. 

“Critics say a payment that is optional in name can feel required to someone who needs the money, and who depends on the same app for access to it,” Nestor told American Banker. 

Critics have also alleged that tip requests are incessant, and can be misleading as to who is actually receiving those tips. 

“Historically, the way [EWA providers] have operated is to ask for a tip, and if a consumer balks, they’ll ask again,” Adam Rust, director of financial services at the Consumer Federation of America, told American Banker. “Sometimes, [the company will] make a plea that a portion of the tip goes to a worthy cause — maybe food pantries or the environment — but really without being clear about what percentage that is. Other times they’ll say it helps the community, which is very vague.” 

Many direct-to-consumer EWA customers have historically tipped at a high rate, according to a 2023 analysis of EWA data by California Department of Financial Protection and Innovation. The DFPI collected data in 2021 through memorandum of understanding agreements with several EWA companies. 

Tips were collected in 73% of the 5.8 million transactions examined by the regulator, generating a total of $17.55 million in revenue, with optional fees generating $6.24 million. The average tip was $4.09, according to DFPI.