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The following are from the Illinois REALTORS web page. illinoisrealtors.org/legal/legal-a-z/personal-assistants/

13. Recently there has been some confusion as to what an unlicensed personal assistant can or cannot do relative to hosting open houses or broker tours. Will you please clarify these issues?

Pursuant to the rules governing personal assistants, unlicensed assistants may not "host open houses, kiosks, or home show booths or fairs." As a result, an unlicensed personal assistant may not, under any circumstances, sit or host an open house that is open to the public. The thinking is that the unlicensed personal assistant would be in a position of assisting the licensee in the "procuring of prospects," which is one of the licensed activities itemized under the License Law. In addition, the unlicensed personal assistant is placed in a position where he or she may be tempted to answer specific questions about the property that may go beyond simply quoting published information. Once again, this would put the unlicensed personal assistant in the position of engaging in licensed activities. Finally, the License Law rewrite adds hosting an open house to the public to its list of licensed activities under the definition of Broker (225 ILCS 454/1-10).

There continues to be some confusion as to whether or not an unlicensed personal assistant may sit for a broker tour. First, it is necessary to clarify the definition of broker tour. This would be a situation where one broker’s listing would be held open for a group of licensees to view the property. In other words, the home is not open to the public but to a group of licensees. In that event, the Office of Banks and Real Estate, based on informal conversations, has said it would not prosecute a case where an unlicensed personal assistant sat for a broker tour. The key here is that it is not open to the public, thus subjecting the unlicensed personal assistant to far fewer possibilities of engaging in licensed activities. (The moment the public walks in every one's license is in jeopardy)

There have been reports of broker tours being scheduled, but on the day of the tour, an open house sign has been placed in the yard. This would imply that the public is invited, and in that event, the unlicensed personal assistant could not serve as host.

New License law:

Every sponsoring broker must have a written employment agreement with each licensed personal assistant who assists a licensee sponsored by the sponsoring broker. This requirement applies to all licensed personal assistants whether or not they perform licensed activities in their capacity as a personal assistant. The agreement shall address the employment or independent contractor relationship terms, including without limitation supervision, duties, compensation, and termination.

Article from the Illinois REALTORS attorney:

Personal Assistants: Licensed vs. Unlicensed

The same rules do not apply.

There have been several recent requests that we revisit some of the issues surrounding the use of personal assistants. This article and the accompanying sidebar article dealing with the rules on the use of unlicensed personal assistants attempt to provide a thumbnail sketch of some of those issues.

Perhaps the question asked most often by the principal broker when dealing with personal assistants is whether they can be employed by or contract directly with one of the broker's salespeople. The answer to that question may well depend on whether the personal assistant ("P.A.") is licensed. If the P.A. is not licensed then the P.A. can be employed by the salesperson. However, it will be very difficult for the unlicensed P.A. to be an independent contractor. The reason for this is that as an unlicensed person the P.A. cannot be paid a commission for licensed activities. Thus, the unlicensed P.A. will not qualify under the Internal Revenue Code's safe harbor test as a statutory independent contractor and probably cannot qualify as an independent contractor under the Internal Revenue Code's twenty factor test.

As the employer of an unlicensed P.A., your salesperson will need to withhold taxes, pay FICA, FUTA and State unemployment and workers compensation. The salesperson will have to obtain a Federal Employees Identification Number. Also, any questions of overtime pay would need to be addressed by the salesperson. In addition, the activities of the unlicensed P.A. will be limited, as indicated in the sidebar article dealing with the rules on that issue. As the principal broker you would be well-advised to have a clear understanding with the salesperson and unlicensed P.A. that the salesperson is the employer and responsible for the obligations of the employer. An indemnification from the salesperson to the broker as to these obligations may also be in order.

If the P.A. is licensed, the answer is very different. Remember, if the P.A. is licensed he is merely a licensed salesperson agreeing to work with one or more of your other salespeople. Further, remember that a licensed salesperson must be sponsored by the principal broker in the brokerage company. In addition, as principal and sponsoring broker you must have a written agreement with that sponsored licensee (P.A.). That written agreement can be an employment agreement or an independent contractor's agreement. Further, a licensee, in this case the P.A., can only accept compensation for licensed activities from the sponsoring broker. Thus, the licensed P.A. cannot be paid for licensed activities by the salesperson with whom the P.A. works. Thus, the Real Estate License Act of 1983 ("License Law") effectively precludes the salesperson directly contracting with and compensating the licensed P.A. for licensed activities.

As the principal broker you will probably want to have an agreement with the salesperson indicating whether the licensed P.A. is to be an independent contractor or employee and how he is to be compensated. For example, that agreement might provide that the licensed P.A. is to be paid ten percent (10%) of whatever amount might otherwise be paid to the salesperson and the salesperson's compensation reduced accordingly. This would allow the licensed P.A. to be treated as an independent contractor since he is receiving substantially all of their compensation from sales activities and he is also a licensee.

On the other hand, your salesperson may want the licensed P.A. paid on an hourly basis but treated as an independent contractor. As the principal broker, two of your concerns will be where are the monies coming from to pay the hourly rate and whether the P.A. can be legitimately considered to be an independent contractor and not an employee. As to the first issue, your agreement with the salesperson could provide that the amounts paid to the P.A. will be deducted from the commission checks paid to the salesperson and that to the extent that amounts paid to the salesperson are less than those paid to the P.A. that the salesperson will reimburse you. As to the second issue, as principal broker I would suggest you satisfy yourself that the P.A. can legitimately be treated as an independent contractor. If the P.A. is ultimately considered to be an employee by the Internal Revenue Service, you, as the employer, will be responsible for failure to withhold, back taxes, penalties and interest.

There are a number of other issues to be considered with regard to P.A.s. For more in-depth treatment of those issues and the issues discussed in this article, please see the Illinois REALTORS® Personal Assistants Manual.

Please remember the following basic guidelines:

For an unlicensed P.A.

  1. Either you or your salesperson can be the employer.
  2. The P.A. probably cannot be an independent contractor.
  3. The P.A.'s activities are limited by rule.
  4. You should have an agreement with your salesperson on the responsibilities of paying and managing the P.A.

For a licensed P.A.

  1. As the principal broker, you will be the sponsor and must have a written agreement with the licensed P.A.
  2. The licensed P.A. can only accept compensation for licensed activities from you.
  3. The P.A. can be an employee or independent contractor.
  4. You should have a written agreement with your salesperson dealing with how the licensed P.A. is to be compensated.

Remember, that as principal broker it is your license that may well be disciplined if the provisions of the License Law and its rules are not followed.

Rules on Unlicensed Personal Assistants

Section 1450.165 Unlicensed Assistants

a) Licensees under the Act may employ, or otherwise utilize the services of, unlicensed assistants to assist them with administrative, clerical, or personal activities for which a license under the Act is not required.

An unlicensed assistant, on behalf of and under the direction of a licensee, may engage in the following administrative, clerical, or personal activities without being in violation of the licensing requirements of the Act. The following list is intended to be illustrative and declarative of the Act and is not intended to increase or decrease the scope of activities for which a license is required under the Act. An unlicensed assistant of a licensee may:

  1. answer the telephone, take messages, and forward calls to a licensee;
  2. submit listings and changes to a multiple listing service;
  3. follow up on a transaction after a contract has been signed;
  4. assemble documents for a closing;
  5. secure public information from a courthouse, sewer district, water district, or other repository of public information;
  6. have keys made for a company listing;
  7. draft advertising copy and promotional materials for approval by a licensee;
  8. place advertising;
  9. record and deposit earnest money, security deposits, and rents;
  10. complete contract forms with business and factual information at the direction of and with approval by a licensee;
  11. monitor licenses and personnel files;
  12. compute commission checks and perform bookkeeping activities;
  13. place signs on property;
  14. order items of routine repair as directed by a licensee;
  15. prepare and distribute flyers and promotional information under the direction of and with approval by a licensee;
  16. act as a courier to deliver documents, pick up keys, etc.;
  17. place routine telephone calls on late rent payments;
  18. schedule appointments for the licensee (this does not include making phone calls, telemarketing, or performing other activities to solicit business on behalf of the licensee);
  19. respond to questions by quoting directly from published information;
  20. it at a property for a broker tour which is not open to the public;
  21. gather feedback on showings;
  22. perform maintenance, engineering, operations or other building trades work and answer questions about such work;
  23. provide security;
  24. provide concierge services and other similar amenities to existing tenants;
  25. manage or supervise maintenance, engineering, operations, building trades and security; and
  26. perform other administrative, clerical, and personal activities for which a license under the Act is not required.

An unlicensed assistant of a licensee may not perform the following activities for which a license under the Act is required. The following list is intended to be illustrative and declarative of the Act and is not intended to increase or decrease the scope of activities for which a license is required under the Act. An unlicensed assistant of a licensee may not:

  1. host open houses, kiosks, or home show booths or fairs;
  2. show property;
  3. interpret information on listings, titles, financing, contracts, closings, or other information relating to a transaction;
  4. explain or interpret a contract, listing, lease agreement, or other real estate document with anyone outside the licensee's company;
  5. negotiate or agree to any commission, commission split, management fee, or referral fee on behalf of a licensee; or
  6. perform any other activity for which a license under the Act is required.
  7. Any licensee who employs an unlicensed assistant shall be responsible for the actions of the unlicensed assistant taken while under the supervision of or at the direction of the licensee.
  8. Any licensee who is responsible for the actions of an unlicensed assistant by statute, regulation, contract, or office policy and who permits, aids, assists, or allows an unlicensed assistant to perform any activity for which a license under the Act is required shall be in violation of the Act.
  9. Stenographic, clerical, maintenance, engineering, building trades, security, or office personnel not directly engaged in the practice of real estate brokerage as defined in Section 1-10 of the Act are not required to be licensed.
  10. A licensee is prohibited from acting as an unlicensed assistant for any licensee other than his or her sponsoring broker or a licensee sponsored by the sponsoring broker.