dissenting:
The plaintiff, Jack Bradley, Inc., filed a complaint seeking judicial review of a decision of the Director of the Illinois Department of Employment Security (hereinafter Agency) which assessed the plaintiff $13,898.16 plus interest in unpaid unemployment contributions. The Agency decision was based on its finding that food demonstrators, who were contacted for jobs by the plaintiff, were employees of the plaintiff, not independent contractors, pursuant to section 212 of the Unemployment Insurance Act. (Ill. Rev. Stat. 1987, ch. 48, par. 322.) The trial court found that the Agency decision was manifestly erroneous and reversed. A majority of this court reverses the trial court decision, finding that the food demonstrators are not “engaged in an independently established trade, occupation, profession or business” as required by the third prong of the independent contractor exemption set forth under section 212. I find that food demonstrators are independent contractors within the meaning of the statute and accordingly dissent.
Jack Bradley is engaged in the advertising and public relations business in Chillicothe, Illinois. As part of his business, Jack Bradley acts as a conduit between retail food stores and food demonstrators as to the availability of food demonstration work in retail establishments. The requests for food demonstrators’ services are initiated by retailers and then Bradley contacts one of the approximately 200 to 250 food demonstrators that he has on a list. The food demonstrators are free to either accept or reject the job. Jack Bradley’s contract with the demonstrators is entitled “Independent Contract Agreement” and provides in pertinent part that the food demonstrators “have sole control of the manner and means of performing” the job and are “responsible for supplying all equipment necessary for the performance” of the job. None of the demonstration work takes place at Bradley’s place of business, and Bradley issues 1099 forms to the demonstrators for tax purposes, which are the forms which are normally issued to independent contractors. Bradley pays the demonstrators for the jobs performed, and Bradley receives approximately 20% of his total business from arranging jobs between the retailers and demonstrators. Betty Thomas, a food demonstrator, testified that she is an independent demonstration person and that she finds work either through the food vendors or Jack Bradley.
The independent contractor exemption in section 212 of the Unemployment Insurance Act applies when three criteria are met: (1) whether the individual is free from control; (2) whether the service is outside the usual course of business or is performed outside all of the places of business of the enterprise for which the service is performed; and (3) whether the individual is customarily engaged in an independently established trade, occupation, profession or business. (Ill. Rev. Stat. 1989, ch. 48, par. 322.) Here, there is no question that the demonstrators were free from Bradley’s control and direction and that the demonstrations were performed outside all of the places of Bradley’s business. Thus, the only question remaining is whether the food demonstrators were engaged in an independently established trade, occupation, profession or business.
The majority, relying on a Missouri appellate case with a similar factual situation, finds that this third requirement is lacking. (Sample & Sell, Inc. v. Labor & Industrial Relations Comm’n (Mo. App. 1988), 764 S.W.2d 109.) In Sample, the Missouri Appellate Court found that food demonstrators are not engaged in an independent entrepreneurial enterprise, but are dependent upon other entities for employment. The reasoning of Sample is flawed and is not binding precedent in Illinois.
The definition of an “independent contractor” necessarily means that a person is contracting with another to perform a particular job. (Black’s Law Dictionary 693 (5th ed. 1979).) While the common-law definition of an independent contractor does not control under the Unemployment Insurance Act (Farmers Insurance Exchange v. Department of Labor (1989), 186 Ill. App. 3d 493, 542 N.E.2d 538), neither the language of section 212 nor the case law interpreting the statute warrants the hollow definition given “independent contractors” by the majority holding. In the case at bar, the food demonstrators are not dependent on Jack Bradley for demonstration jobs but can obtain work from the food vendors directly or from other companies. Thus, under a commonsense reading of section 212(c), the food demonstrators are engaged in an independent occupation. Additionally, this case is factually distinct from the only Illinois case interpreting the third requirement of section 212. (Legal Process Service, Inc. v. Ward (1988), 165 Ill. App. 3d 83, 518 N.E.2d 768.) In Ward, Legal Process Service, Inc. (hereinafter LPS), hired persons to serve process for litigating attorneys. The Ward court found that these process servers were employees of LPS under section 212(c) because they engaged in no independent process serving other than pursuant to the directions of LPS, which engaged them. In the present case, the food demonstrators were free to, and did, perform their services independent of Jack Bradley, Inc.
Accordingly, I agree with the trial court that it was manifestly erroneous for the Illinois Department of Employment Security to find that the food demonstrators were employees rather than independent contractors under section 212. Therefore, I dissent.