Two in the an accurate of this case. First, the majority fails to address the Board of Review’s misapplication of Carpetland USA, Inc. v. Ill. Dept. of Empl. Sec., 776 N.E.2d 166 (Ill. 2002). The substantial-evidence standard is applicable only when the issue is one of fact. The rule has no application when the issue is one of law. Arkansas Oklahoma Gas Corp. v. Director, Ark. Employment Sec. Dep’t, 80 Ark. App. 251, 94 S.W.3d 366, (2002). Second, the nature of the services provided by Home Care Professionals of Arkansas, Inc., to the clients and the nature of the services provided by the caregivers in the homes of the clients are fundamentally different.
The caregivers provide personal services of an intimate nature to the clients, such as bathing, dressing, and meal preparation. Home Care provides services to the client by compiling a list of potential caregivers and gathering information about those individuals in order to assist the client in selecting acceptable caregivers for such personal contact. Home Care also distributes payments to the various caregivers. Therefore, the services performed, which is the focus of the statutory analysis under section ll-10-210(e) (Supp. 2005), are fundamentally different.
The Board of Review found that Home Care Professionals, Inc., satisfied the first and third statutory exemption requirements found in Ark. Code Ann. § ll-10-210(e). Therefore, we begin with two premises: (1) The individual caregivers are free from the control and direction of Home Care in connection with the performance of the services provided in the client’s homes, both under his or her contract for the performance of service and in fact; (2) Each individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed. In this case, the business of the same nature is home care for the elderly.
Our analysis must therefore focus on the Board’s determination that the caregivers are representing Home Care’s interest on the clients’ premises because the caregivers are “performing the very service by which [HCP] profits.” The Board, and the majority, relied upon the articles of incorporation for Home Care. These articles state that the purpose of the business is to provide home-care for the elderly. To reach the conclusion that the caregivers are performing the service by which Home Care profits, the Board relied upon Carpetland, supra.
In Carpetland, the business sold carpets with the added service of arranging for the installation of the carpet at the time of sale. Seventy-five percent of the company’s business included the installation with the sale. The Illinois court found that the installers were independent contractors but applied a theory of delegation to find that the measurers for the carpet were not independent contractors:
The situation with the measurers is not as clear cut. The report concludes that:
“Without accurate measurements, petitioner would have a difficult time finalizing its sales to the customers. The sales persons could and were encouraged to do the measurement, by making them pay half of the measurer’s fees, but such demands on their time would reduce the volume of their sales. * * * Thus, the measurer’s services were integrated into the petitioner’s business and therefore were clearly within the usual course of, and in furtherance of the petitioner’s business.”
The Director concurred, noting that “the petitioner’s salespeople, who are employees, can and often do the measuring themselves.” The appellate court did not consider this factor.Calculating the price of goods is necessary to Carpetland’s business. The salesperson cannot close the deal until he can multiply the square yardage of carpeting required by the price per square yard. The customer may provide the dimensions, in which case no measurement is needed. If not, it is the salesperson’s responsibility to obtain the needed information. When one’s employee is assigned the responsibility for a certain task, and has the choice between performing that task himself or delegating it to another, that task is clearly within the course of business for the employer. Thus, the measurers do perform a service within Carpetland’s usual course of business.
Carpetland, 776 N. E. 2d at 187.
The Illinois court found that the employees of Carpetland were responsible for obtaining the measurements for the sale of the carpet. They could do that by receiving the measurements from the purchasers of the carpet, measuring the room themselves, or delegating that responsibility to the measurers. The nature of selling carpet required the determination of a specific amount of carpet to be sold because the sale could not be completed without a designated yardage. Because the measurements could only be obtained in the home of the purchaser, the home of the purchaser extended the place of business of Carpetland when Carpetland sent its employees or delegated the task to the measurers. Although Carpetland provided the service of arranging for the installation of the carpet, and seventy-five percent of their business included arranging for that service and installation was performed in the customer’s home, the Illinois court found that the installers were independent contractors. The key to the distinction is the fact that Carpetland delegated the performance of its duty to measure.
For this analysis to apply here, Home Care must be contractually responsible to provide the personal services received by the clients and then delegate contractual responsibility to the caregivers. That is not the case. As the majority acknowledges, over the years, Home Care ceased directly providing home-care services for the elderly and evolved into a home-care referral service. The contractual responsibility of Home Care with the clients is to provide a list of individuals with whom the clients may negotiate and enter agreements for the care provided and the fees charged. Home Care enters into one contract with the caregiver and a separate and distinct contract with the client. The client and the caregiver are required by separate provisions not to enter into a private employment arrangement for twelve months from the last date worked by the caretaker. This provision in the contract with the client is titled “NON COMPENSATION” and reads as follows:
Client agrees by entering into this agreement and accepting referrals from HCPA that he or she will not enter into private employment with referred caregiver for a period of twelve (12) months from the last due date referred by HCPA.
“Non compensation” is an accurate title for this provision. The client is not in competition with Home Care, its agent, for this information. The client specifically contracted with Home Care to provide a list of acceptable caregivers, and Home Care is under a contractual obligation to obtain, maintain, and supply the list of caregivers to the client.
The noncompetition provision in the contract between the caregiver and HCPA is specifically titled “NONCOMPETITION CLAUSE” and contains the following stipulation:
The parties to the Contract agree that HCPA has a valid and legitimate interest in the protection of its customer base from appropriation. Therefore, in order to protect this interest, IC agrees by entering into this Agreement and accepting referrals by HCPA that he or she will not accept private employment from any Client of HCPA to whom he or she provided services for a period of twelve (12) months from the last due date of referral by HCPA.
In order to meet its client’s needs, Home Care maintains a list of elderly people identifying their specific care needs. This list is compiled by a variety of means including interviews and home inspections. Confidential business information such as these detailed customer lists is a protectable interest. See Statco Wireless, LLC v. Southwestern Bell Wireless, LLC, 80 Ark. App. 284, 95 S.W.3d 13 (2003). The agreement entered into by Home Care and the client is entitled “Home Care Contract” and states specifically that “[t]he provision of this Agreement shall govern the referral of a Caregiver in the performance of companion and home care.” The paperwork presented to a potential caregiver states specifically that “Home Care Professionals of Arkansas, Inc. is the client or homeowners [sic] representative and will assist them in the business of caregiving.”
The Board found that the caregivers represent Home Care’s interest on the clients’ premises because they are “performing the very service by which Home Care profits.” That finding is not supported by the evidence. Home Care profits by providing information to clients who subsequently negotiate and agree with caregivers to provide and receive elder care. Providing information is one service in elder care. Personal services are of a different nature. Home Care is not contractually liable to perform any personal care to its clients. Instead, Home Care is contractually obligated to find acceptable people to provide the elder home care and contractually obligated to receive and disburse payment for that care. Home Care cannot legally delegate a duty it has no legal duty to perform.
The Board’s reasoning that the caregivers represent Home Care’s interest while in the client’s home because Home Care profits from the services provided in the home is clearly wrong. The Illinois court in Carpetland rejected the assertion that the place of business extends to “any place where a worker performs agreed-upon services” for an employing unit finding that “if this were the test for place of business, the exception for independent contractors would cease to have any meaning because any place in which a worker performed an agreed-upon service, even his own home or office, would become the place of business of the party who hired him.” Carpetland, 776 N.E.2d at 188. Even if the caregivers entered into a contractual relationship with Home Care to provide personal services in the home of the elderly, which they do not, the majority’s opinion effectively eviscerates the exception.
Accordingly, I dissent.