Some programs offer to make real estate agents part-time employees of the lender. How does this work and is it legal?

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Since RESPA exempts payments by an employer to its employees, several programs offer to make the real estate agent a part-time employee of the lender. However, only bona fide employees are covered by this exemption. The Internal Revenue Service sets strict standards for employment. Although HUD has never published criteria, it’s likely the IRS rules would prevail. That means in order to be considered an employee rather than an independent contractor, the agent/loan officer must: 1) be under the supervision and control of a lender’s office; 2) use the lender’s equipment; 3) have set hours; 4) receive a W-2 form; 5) receive standard employee benefits; and 6) have the lender be liable for the employee’s conduct. That means that a real estate agent that becomes a “loan officer” only after selling a property is unlikely to be considered a true employee and therefore would not be covered by the RESPA exemption.

Source: TAR

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