i realize that is the general rule. however, if he is a bona fide employee (meets IRS factor test) of the title agency wouldn't this be an exception under Section 14(g)(vii).."an employer's payment to its own employees for any referral activities."
A: The U.S. Supreme Court (Freeman v. Quicken Loans, Inc., 132 S.Ct. 2034, 2041 (2012)) has held that RESPA does not prohibit a person from referring between activities which are owned by a single business entity. Example: If you were a title company and your salesperson, or someone else were the designated responsible broker for a real estate agency, owned by your title company, or visa versa, or where you are both divisions of one business entity, then there is no unlawful referral.
The problem in your contemplated scenario is that the employee is receiving a "thing of value," in my opinion: he/she gets to keep his/her job by referring outside business to your business. The fact that he/she is an employee of your business, while simultaneously engaged in outside business as a real estate salesperson, suggests a conflict of interest with his/her client, for which the salesperson could be sued for breach of fiduciary and loyalty. But, it also suggests that a court could find that the referral is coming from an outside interests, and that the salesperson is getting value for the referral.
We're into the "weeds" here. I can't give you a definitive answer, because there's no case law that definitively rules on the transaction you now suggest. In my opinion, the risk is greater than the benefit. But, that's something that you and your salesperson must decide.
Keep in mind, he would not make any title agency commission on his own transactions that he has as a realtor. Would your answer be different if he referred all of his realtor work to a different title agency? Under that scenario, my title agency would not handle any of his transactions where he acted as a realtor.
A: If the salesperson were referring to a title company where he/she receives no compensation, and where the salesperson is not an employee, then there is no RESPA violation, in my opinion.
Hope this helps.