Can MLOs Truly Be Independent Contractors?

Is it a Federal or State Law?

Many mortgage companies operate under the assumption that classifying Mortgage Loan Originators (MLOs) as independent contractors is permissible, often citing a perceived lack of concern from state regulators. However, it’s crucial to understand that federal laws take precedence over state regulations in matters of worker classification. The Department of Labor (DOL), Internal Revenue Service (IRS), and the Secure and Fair Enforcement for Mortgage Licensing Act (SAFE Act) provide clear guidelines that often categorize MLOs as employees rather than independent contractors. Relying solely on state-level interpretations or enforcement—or the absence thereof—does not exempt companies from adhering to federal standards. Misclassification can lead to significant legal and financial consequences, including penalties, back wages, and tax liabilities.

What the DOL’s New Rule Means for the Mortgage Industry

On May 2, 2025, the U.S. Department of Labor’s Wage and Hour Division (WHD) reaffirmed and clarified how businesses should determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA).

This is particularly important for mortgage companies, many of which continue to classify Mortgage Loan Originators (MLOs) as independent contractors despite long-standing federal guidance to the contrary.  The Wage and Hour Division defines an employee as:

A worker who is “distinguished from a person who is engaged in business for himself or herself, is one who, as a matter of economic reality, follows the usual path of an employee and is dependent upon the business to which he or she renders service.”

The DOL applies an “economic reality test” using six key factors—none of which are determinative on their own. Let’s break them down in the context of a mortgage operation:

1. Control – If you dictate when and where MLOs work, require specific hours, restrict outside employment, or require adherence to internal policies and procedures, you’re exerting a level of control indicative of an employment relationship. Truly independent MLOs must have the freedom to work how, when, and for whom they choose, (including competitors)—without supervision or internal production mandates.

2. Permanency of the Relationship – Permanent, ongoing, or exclusive relationships suggest employee status. If your originators are expected to work solely for your company and have no exit strategy or flexibility to work elsewhere, this weighs heavily toward an employee classification.

3. Investment in Tools and Helpers – Independent contractors usually invest in their business—pay rent for office space, have overhead, accounting and legal services, CRM systems, marketing, software, licensing, and assistants. If your company supplies all of this infrastructure, your MLOs are economically dependent on your business, suggesting employee status.

4. Skill, Initiative, and Judgment – Employees often rely on their company for training, leads, and operational structure. Contractors, however, must bring and use business acumen, take initiative, and make strategic decisions to succeed. If your MLOs rely on you for their pipeline, brand and training, they simply cannot be functioning as independent business.

5. Opportunity for Profit or Loss – Independent contractors have control over their earnings based on their own business strategies—not just how many loans they close. This includes managing revenue and expenses, marketing, pricing, workload, tax strategies and maximizing profit. If MLOs are simply paid a commission with no bearing on the expenses or strategic risk of the company, they are functioning like employees.

6. Integrality to the Business – If your business’s core function is mortgage origination, and your MLOs are doing that work, they are clearly integral. This factor heavily favors employee classification. Independent contractors typically perform work that is not central to the business’s primary purpose.

The IRS Also Weighed In—Decisively

The IRS has also addressed this issue. In Technical Advice Memorandum (TAM) 200340038, the IRS found that Mortgage Loan Officers are employees—not independent contractors—even if they are paid on commission. The IRS concluded that mortgage companies exerted sufficient control and direction over MLOs’ work to warrant employee status under the common law test.

The SAFE Act Confirms Employment Ties

Federal licensing requirements also reinforce employee classification. The Secure and Fair Enforcement for Mortgage Licensing Act (SAFE Act) requires that each state-licensed mortgage loan originator be “sponsored by a registered or licensed mortgage company” under 12 U.S.C. § 5105(a)(2). This sponsorship requirement binds the individual to a specific company that assumes supervisory and compliance responsibilities—a hallmark of an employee-employer relationship.

You can’t be truly “independent” if your license is conditional on being attached to a licensed company.

Why This Matters for Mortgage Companies

The fact the US Department of Labor’s Wage and Hour Division published this clarification demonstrates it is on their radar.  Misclassifying workers can lead to serious consequences: unpaid overtime, back taxes, penalties, and legal exposure. Relying on outdated or boilerplate contractor agreements is not enough. You must examine the actual working relationship.

Bottom line: The IRS, DOL, and SAFE Act all lean heavily toward treating MLOs as employees.

If you’re unsure how this rule applies now is the time to take a closer look.

Questions or comments: Email deb@cloes.online

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