If you haven’t been keeping your pulse on the changing landscape of the real estate industry and the likely future of brokerage structures, agent payment, and transaction coordinator employment status, you may not be aware of the Assembly Bill (AB) 5, the important legal statute passed by California Governor, Gavin Newsom, that just went into effect this month.

What is Assembly Bill (AB) 5?

AB 5 is a bill the Governor signed into law in September 2019 addressing employment status when a hiring entity claims that the person it hired is an independent contractor. AB 5 requires the application of the “ABC test” to determine if workers in California are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the Industrial Welfare Commission (IWC) wage orders.

The ABC test is intended to address 3 requirements:

1. Is the worker free from the control and direction of the hiring entity in the performance of the work, both under the contract for the performance of the work and in fact?
   
   
2. Does the worker perform work that is outside the usual course of the hiring entity’s business?
   
   
3. Is the worker customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity?

How does this affect my real estate business?

As the real estate industry currently operates, agents and transaction coordinators are usually hired as independent contractors. Federal Law guaranteeing agents’ rights to operate as independent contractors will likely take precedence over AB 5, but the status of transaction coordinators will most definitely be addressed. Most brokerages hire transaction coordinators as independent contractors, and there’s an increasing trend of agents hiring personal coordinators as independent contractors directly. This will likely result in a tumultuous upheaval of business operations for brokers and agents alike for most in California, however, it presents a unique opportunity for those ahead of the curve to gain an edge on the competition. We’ll get to that soon, but first it’s necessary to go over the issue the unprepared brokers and agents will falter over.

What does this mean for transaction coordinators?

Of course, coordinators will no longer hold the opportunity to be hired as independent contractors directly by brokerages, but what about agents, (assuming they are afforded the privilege of maintaining their independent contractor status), who hire transaction coordinators directly? Independent contractors are responsible for paying their FICA taxes quarterly, (typically 15%), while employers of standard employees are responsible for paying half of these costs, and the employee the other half. Does this mean in the instance an agent contracts a transaction coordinator directly that the agent will now be responsible for half of the FICA fees incurred by the coordinator?

There’s no Federal Law in place advocating for the coordinator’s continued role as independent contractors, as is the case for agents, so someone, whether the agent or the broker, will now be paying this additional tax. If the broker has a degree of separation from these coordinators, since they hire agents as independent contractors, who then hire the transaction coordinators, the cost may very well fall to the agent.

How can brokers and agents capitalize on this impending shift?

While the future of employment status for agents is still an undetermined proposition at this time, there is good news for agents and brokers concerning the new requirement that transaction coordinators must be hired as employees. Outsourced transaction coordination services, like REBO, allow brokers and agents alike to circumvent these new incipient tax implications.

Transaction coordinators working for these services will uphold the new requirements as full-time employees, but they will be employees of these services, not of the brokerage or agent. Contracting these services, and allocating transaction coordination responsibilities from the broker and agent will effectively maintain broker and agent compliance with Assembly Bill 5, while passing the new tax costs to those services. It is apparent that these services are invariably the future of the transaction coordinator – agent relationship, and any broker or agent that resists this change breaks the law and invokes the wrath of the IRS at their own peril.

To learn more about adjusting the transaction coordination process of your brokerage or personal real estate business, contact REBO at payton@realestatebackops.com