dissenting:
In reaching its decision, the majority applies a list of factors found in regulations (56 Ill. Adm. Code §§ 2732.200(g)(1) through (g)(25) (1991)) adopted by the Department as a guide to determining whether an “employing unit” enjoys the right of “control or direction over the performance of such services” (820 ILCS 405/212(A) (West 1996)) for which the employing unit claims exemption under the Unemployment Insurance Act (the Act) (820 ILCS 405/100 et seq. (West 1996)). The regulations caution that no one factor or combination of factors should determine whether the employing unit has the right to control or direct. 56 Ill. Adm. Code § 2732.200(g) (1991). Rather, this determination should be made according to “the business reality or totality of the circumstances.” 56 Ill. Adm. Code § 2732.200(g) (1991). Because I believe that the majority’s decision ignores the foregoing admonition, I must dissent.
The case at bar involves a business (Cohen) that engages a service provider (the carpet installers) to provide a service incidental to the business’s enterprise (the sale of furnishings and carpet) but which the business has, nevertheless, promised to a third party (Cohen’s customers). Such a triangular business arrangement does not by itself place the provided services outside of the section 212 exemption. See Jack Bradley, Inc. v. Department of Employment Security, 146 Ill. 2d 61, 585 N.E.2d 123 (1991). It is still necessary to examine the economic relationship between the business and the service provider as a whole in order to determine the applicability of the section 212 exemption.
Most of the subsection 2732.200(g) factors that the majority cites fail to provide any guidance as to the substantive economic relationship between Cohen and the carpet installers. See 56 Ill. Adm. Code §§ 2732.200(g)(1), (g)(3), (g)(8), (g)(14), (g)(19), (g)(20) (1991). Instead, these factors apply almost anytime a business compensates another party for providing a service to its customers which is only ancillary to its business but which it has promised to arrange for its customers’ convenience, regardless of whether the service provider is an employee or an independent contractor. These factors naturally attend such a tripartite business arrangement where the business seeks to maximize its customers’ convenience and reduce transaction costs by acting as the intermediary between the customers and a service provider. Accordingly, I believe the majority is mistaken in its reliance on these factors.
Other factors upon which the majority relies (56 Ill. Adm. Code §§ 2732.200(g)(7), (g)(21), (g)(25) (1991)), although marginally probative, do not show that Cohen enjoys a right of control or direction over the services provided by the installers. Furthermore, I believe the majority fails to take into account several subsection 2732.200(g) factors favoring the conclusion that Cohen lacks the right of control or direction. See 56 Ill. Adm. Code §§ 2732.200(g)(4) through (g)(6), (g)(9) through (g)(13), (g)(15) through (g)(18), (g)(22) through (g)(24) (1991). Therefore, I would find that Cohen met its burden of proof as to subsection 212(A) of the Act (820 ILCS 405/212(A) (West 1996)).
I would also find that Cohen met its burden of proof with respect to subsections 212(B) and 212(C) of the Act (820 ILCS 405/212(B), (C) (West 1996)). Subsection 212(B) is satisfied because the service provided by the carpet installers is performed in the homes and businesses of Cohen’s customers, and, therefore, outside of any of Cohen’s places of business. See United Delivery Service, Ltd. v. Didrickson, 276 Ill. App. 3d 584, 659 N.E.2d 82 (1995). Moreover, subsection 212(C) is satisfied because the carpet installers can engage in their trade independent of Cohen. See United Delivery Service, Ltd., 276 Ill. App. 3d 584, 659 N.E.2d 82. Thus, I would hold that the Department’s decision is clearly erroneous and affirm the judgment of the circuit court.
Accordingly, I dissent.