COHEN FURNITURE v. DEPT. OF EMP. SEC.

• Decision Date: 01 October 1999
• Docket Number: No. 3-98-0648.,3-98-0648.
• Citation: 241 Ill.Dec. 204,307 Ill. App.3d 978,718 N.E.2d 1058
• Parties: COHEN FURNITURE COMPANY, Plaintiff-Appellee, v. STATE of Illinois DEPARTMENT OF EMPLOYMENT SECURITY & Lynn Quigley Doherty, Director of Employment Security, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

718 N.E.2d 1058

307 Ill. App.3d 978

241 Ill.Dec. 204

COHEN FURNITURE COMPANY, Plaintiff-Appellee, v. STATE of Illinois DEPARTMENT OF EMPLOYMENT SECURITY & Lynn Quigley Doherty, Director of Employment Security, Defendants-Appellants.

No. 3-98-0648.

Appellate Court of Illinois, Third District.

October 1, 1999.

James Ryan, Attorney General, Darryl B. Simko, Assistant Attorney General (argued), Chicago, for Lynn Quigley Doherty and State of Illinois Dept. of Employment Security.

David J. Dubicki, Beth Wellenraiter (argued), Kavanagh, Scully, Sudow, White & Frederick, P.C., Peoria, for Cohen Furniture Company.

Justice HOMER delivered the opinion of the court:

In this appeal we must determine whether the trial court erred in reversing the decision of the Department of Employment Security by finding that Cohen Furniture Company did not owe any contributions under the Unemployment Insurance Act (820 ILCS 405/100 et seq. (West 1996)), for its carpet installers because the installers were independent contractors. After our careful review, we reverse.

FACTS

Cohen Furniture Company (Cohen) sells home furnishings, including carpeting. Cohen's advertised price for carpet sometimes includes the cost of installation, but even when it does not, Cohen is willing to arrange for installation. To do so, Cohen engages the services of a carpet installer from a list that it maintains.

In December 1995, the Department of Employment Security (Department) issued a "determination and assessment" against Cohen, finding that Cohen was responsible for $3,504.26 in unpaid contributions under the Unemployment Insurance Act (Act) (820 ILCS 405/2200 (West 1996)), for a number of its employees, including 12 carpet installers.¹ Cohen filed a written protest to the assessment and requested an administrative hearing, arguing that because the carpet installers were independent contractors, it was exempt from making contributions for them pursuant to section 212 of the Act (820 ILCS 405/212 (West 1996)).

After reviewing the evidence presented during the hearing, the director of the Department found that Cohen failed to present sufficient evidence on any of the three factors in section 212 of the Act to prove that the carpet installers were independent contractors. Therefore, the Department found that the evidence supported a finding that the carpet installers were employees and that Cohen was responsible for the unpaid contributions.

Cohen filed a complaint for administrative review in the trial court. The trial judge reversed the Department's decision with respect to the 12 carpet installers, finding that the decision in United Delivery Service, Ltd., v. Didrickson,276 Ill. App.3d 584,213 Ill.Dec. 452,659 N.E.2d 82 (1995), was directly on point. The Department's appeal followed.

ANALYSIS

Judicial review of the Department's decisions extends to all questions of law and fact presented by the record. 820 ILCS 405/2205 (West 1996); 735 ILCS 5/3-110 (West 1996). On review, the Department's factual findings are held to be prima facie true and correct, and a reviewing court may set aside such decisions only if they are contrary to the manifest weight of the evidence. Jones v. Illinois Department of Employment Security, 276 Ill.App.3d 281, 284, 212 Ill.Dec. 796, 657 N.E.2d 1141, 1144 (1995). However, administrative agencies are not entitled to such deference on questions of law which are subject to de novo review. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.2d 191, 205, 229 Ill.Dec. 522, 692 N.E.2d 295, 302 (1998).

In the instant case, this court must decide whether the Department erred in determining that Cohen was responsible for unpaid contributions under the Act because its carpet installers did not meet the independent contractor exception set forth in section 212 of the Act. To do so, we must interpret the statutory provision, as well as consider the legal effect of the factual determinations made by the Department. When the question presented for review involves a mixed question of law and fact such as this, the reviewing court must apply the "clearly erroneous" standard. City of Belvidere, 181 Ill.2d at 205, 229 Ill.Dec. 522, 692 N.E.2d at 302.

The Act requires all employers to make contributions to a fund based upon "wages payable for employment." 820 ILCS 405/1400 (West 1996). This fund provides money to involuntarily unemployed workers and their families to ease the burdens caused by unemployment.

In arguing that it was not required to make contributions for its carpet installers, Cohen relies upon section 212 which creates an exception for independent contractors and provides:

"Service performed by an individual for an employing unit, whether or not such individual employs others in connection with the performance of such services, shall be deemed to be employment unless and until it is proven in any proceeding where such issue is involved that—

A. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and

B. Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

C. Such individual is engaged in an independently established trade, occupation, profession, or business." 820 ILCS 405/212 (West 1996).

An employer seeking this exemption from unemployment contributions has the burden of proof, and all three elements must be established before the exemption will be allowed. United Delivery Service, Ltd., 276 Ill.App.3d at 588, 213 Ill.Dec. 452, 659 N.E.2d at 84; 56 Ill. Admin. Code § 2732.200(d) (1990).

When interpreting the term "independent contractor" under section 212 of the Act, courts are not guided by the common law principles pertaining to independent contractor status. See Griffitts Construction Co. v. Department of Labor, 76 Ill.2d 99, 28 Ill.Dec. 166, 390 N.E.2d 333 (1979). Rather, section 212 uses the term in a much broader sense. The terms of the three statutory elements dictate whether the exemption operates, and the designation or description which the parties apply to their relationship is not controlling. 56 Ill. Admin. Code § 2732.200(b) (1990). Therefore, even though the standard-form contract utilized by the parties in this case purports to be an independent contractor agreement, that designation does not control.

Control or direction for the purpose of section 212(A) means that an employer has the right to control and direct the worker, not only as to the work to be done, but also as to how it should be done, whether or not that control is exercised. 56 Ill. Admin. Code § 2732.200(g) (1990). This determination must be made on the particular facts of each case, but section 2732.200(g) of the Illinois Administrative Code identifies a number of relevant factors to be considered. See 56 Ill. Admin. Code § 2732.200(g)(1) through (25) (1990).

A review of her written decision shows that the Department director carefully considered the evidence in light of the relevant factors when she decided that Cohen failed to show that the carpet installers were free from its control and direction. After our careful review, we are unable to find that decision to be clearly erroneous. In fact, the record in this case shows the many ways in which Cohen retained the right to control and direct the carpet installers' work.

Control is indicated when the employer issues assignments, schedules work, sets quotas, or requires the worker to follow a routine. 56 Ill. Admin. Code § 2732.200(g)(1), (3) (1990); see Bennett v. Department of Employment Security, 175 Ill.App.3d 793, 797, 125 Ill.Dec. 383, 530 N.E.2d 541, 544 (1988). In this case, Cohen exercises such control because it determines which installer will be hired for an installation job, issues all job assignments, and sometimes schedules when the work will be done.

Cohen also establishes a routine for the carpet installers to follow for each assignment. When a customer wants Cohen to arrange for carpet installation, Cohen contacts an installer about performing the work. Sometimes Cohen arranges a time for installation on behalf of the customer. Installers pick up the carpeting and padding from Cohen's warehouse during designated hours. When a job is complete, the installer returns the work order to Cohen, itemizing the labor and material charges according to Cohen's standard fee list. The installers work three to four days per week and are issued checks from Cohen on a weekly basis for payment for services rendered.

Engaging a worker on a permanent basis is another factor indicating direction or control under section 212(A) of the Act. See 56 Ill. Admin. Code § 2732.200(g)(7) (1990). Cohen's assertion that the installers work for Cohen on a job-by-job basis is contradicted by the evidence. Cohen furnished the contract which established an ongoing relationship between Cohen and an installer; some installers work under contracts that were signed in 1992. See Bennett, 175 Ill.App.3d at 797, 125 Ill.Dec. 383, 530 N.E.2d at 544 (the court noted as evidence of control that the employer provided the contract and the workers were not required to execute a contract for every job they did for the employer). Furthermore, Cohen retains the right to terminate the employment of any installer. See 56 Ill. Admin. Code § 2732.200(g)(21) (1990).

Cohen also furnishes the workers with materials and reimburses them for expenses incurred while performing the service. See 56 Ill. Admin. Code § 2732.200(g)(8), (14) (1990). Although the installers use their own tools and standard installation materials (such as carpet tape, tacks, glue, and seam sealer), the primary materials (carpet and padding) are provided by Cohen and the payment to the installers is intended to include reimbursement for...