concurring in part and dissenting in part:
I agree with the court that the Department’s determination that the carpet measurers are not independent contractors must be affirmed (201 Ill. 2d at 396). However, I disagree with the court’s conclusion that the Department’s determination concerning the carpet installers is clearly erroneous (201 Ill. 2d at 396), and therefore must respectfully dissent from that portion of today’s opinion.
The Illinois Unemployment Compensation Act (Act) requires all employers to make contributions to a fund based upon “wages payable for employment.” 820 ILCS 405/1400 (West 2000). The fund is used to provide money to involuntarily unemployed workers to help ease the financial hardships caused by unemployment. This court has consistently viewed the Act not as a taxing act, but rather as legislation designed to relieve the burdens of unemployment by utilizing the state’s police powers. Jack Bradley, Inc. v. Department of Employment Security, 146 Ill. 2d 61, 73 (1991) (and cases cited therein). Given the legislative purpose of the Act, we have construed its provisions liberally and given them expansive breadth.
The Act defines “employment” as any service performed by an individual for an employing unit. 820 ILCS 405/206 (West 2000). This court has acknowledged that the fact that the Act’s specifications and definitions may embrace “employment” as it is customarily understood “ ‘ “does not prevent its including within the statutory terms” ’ ” those who before its enactment bore “ ‘ “the relation of independent contractors, or other relations different from that strictly of employee at common law.” ’ ” Jack Bradley, 146 Ill. 2d at 74, quoting Beth Weber, Inc. v. Murphy, 389 Ill. 60, 65 (1945), quoting New York Life Insurance Co. v. Murphy, 388 Ill. 316, 319 (1944). The Act contains various exemptions to the employment definition. Because the Act was enacted with the public welfare in mind, our construction of the Act’s provisions “should favor inclusion,” and the entity seeking the exemption bears a strict burden of proof. Jack Bradley, 146 Ill. 2d at 75.
In this case, Carpetland seeks to avail itself of the exemption for independent contractors contained in section 212 of the Act. The court correctly notes that the three requirements of this exemption are conjunctive, and that Carpetland must prove all three to exempt itself from the applicability of the Act. 201 Ill. 2d at 355. The court, however, considers the Director’s decision, that Carpetland did not establish all three requirements with respect to the carpet installers, clearly erroneous. See 201 Ill. 2d at 396. In so doing, the court holds, inter alia, that Carpetland established the second requirement of section 212, i.e., that the “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.” 201 Ill. 2d at 383-86; 820 ILCS 405/212(B) (West 2000). I disagree.
The Director’s report found that approximately 75% of Carpetland’s floor-covering sales included the cost of installation. In other words, the customer paid installation costs to Carpetland in the great majority of its sales. The remaining percentage of Carpetland’s sales consisted of carpeting or carpet pieces that did not require installation services. I note that this finding of fact was not disputed by the parties. Moreover, no contrary evidence appears of record that would cast doubt as to its accuracy. In light of this, I see no reason to disregard the Director’s finding that installation “is in the petitioner’s usual course of business” as clearly erroneous. The evidence adduced certainly supports the view that carpet installation went hand-in-hand with wall-to-wall carpeting purchases at Carpetland, purchases which the record shows constituted the majority of Carpetland’s sales.
Schatz, Pollack Woolen Co. v. Murphy, 384 Ill. 218 (1943), cited by the court in support of its conclusion that the Director erred in this respect, provides little reason for this court to disregard the Director’s finding. In Schatz, the employer was engaged in the business of selling woolen goods to the tailoring trade. The company maintained an office and sample room in Chicago. The employee for whom the exemption was sought was a window washer who worked part-time at the office. This court held that, with respect to section 212(B), “[t]he washing of windows was not within the usual course of appellee’s business in selling woolens to the tailoring trade. His services may have rendered the place of business more pleasant but they did not enter into any of the many activities necessary to the purchase of woolens and the resale of them to tailors.” Schatz, 384 Ill. at 221. I have difficulty equating the service provided by the installers here with the services rendered by the window washer in Schatz. The installation of carpet, in my view, entails more than a mere pleasantry for the customers of Carpetland. Generally speaking, those who purchase carpeting do so with an expectation that it will be installed. Indeed, the installation of floor covering in the home or business of the purchaser is but one of “the many activities necessary” to the overall purchase of carpeting. For this reason, I do not believe that carpet installation can be deemed incidental to the sale in the same way that the window washing in Schatz was found to be incidental to the sale of woolens.
The court also puts great weight on the fact that the sales agreements between Carpetland and its customers expressly excluded installation and that the practice merely constituted good business sense. I do not believe the sales contract alone is determinative of the question. If it were, employers would too easily be able to cloak their employees with the mantle of independent contractor in order to avoid making unemployment contributions under the Act. Notwithstanding that, however, Carpetland’s willingness to “accommodate” the customer by arranging for installation services brought it more than just the goodwill alluded to by the court in its opinion. 201 Ill. 2d at 387. 1 note that the record reveals that Carpetland charged its customers a flat rate of $3 per yard for carpet installation. Carpetland, however, paid its installers a lesser amount, which ranged down to as low as $2.20 per yard. Thus, while the contract between Carpetland and its customers specifically excluded installation, the bottom-line price paid by the customer to Carpetland included the cost of installation and Carpetland profited from it directly. This is not a case, therefore, where the supplier gives its customer a list of installers and the customer is left to negotiate the price of installation directly with the installer as a separate financial transaction, with no profit returning to the supplier. It was Carpetland that selected the installer for the customer and set up the date of installation. If the selected installer declined the job, Carpetland would select another installer from its list of installers. Carpet-land acted as a middleman between the customer and the installer and realized a monetary gain for doing so. This supports the view that carpet installation was part of Carpetland’s usual course of business, especially when 75% of all of its sales were conducted in this manner. The profits received from the installation and Carpet-land’s “hands-on” involvement bespeak more than a mere incidental convenience extended to customers.
The foregoing facts, in my view, adequately support a finding that the services provided by the installers were part of the usual course of Carpetland’s business. Therefore, unlike my colleagues in the majority, I am not “left with the ‘ “definite and firm conviction” ’ (AFM, 198 Ill. 2d at 395, quoting United States Gypsum Co., 333 U.S. at 395, 92 L. Ed. at 766, 68 S. Ct. at 542) that the conclusions regarding carpet installation and Carpet-land’s usual course of business in the report and the Director’s decision are erroneous.” 201 Ill. 2d at 387.1 Based upon this record, I believe that Carpetland failed to carry its strict burden of proof in demonstrating that its carpet installers were independent contractors. The Director, therefore, had substantial basis to conclude that the requirements of section 212(B) had not been met and that their services were employment subject to contributions under the Act.
JUSTICE McMORROW joins in this partial concurrence and partial dissent.
realize that the two factors of section 212(B) are in the alternative, and that the installers might still fall within the ambit of subsection (B) if their services are performed outside all of Carpetland’s places of business. Given the court’s resolution of the “usual course of business” issue, it did not address the places of business factor vis-a-vis the installers. I would find, however, that Carpetland does not meet this factor. Illinois courts have recognized that any location where workers regularly represent an employer’s interest will be considered a usual place of business for purposes of section 212(B). See Ross v. Cummins, 7 Ill. 2d 595 (1956); Eutectic Welding Alloys Corp. v. Rauch, 1 Ill. 2d 328 (1953). In my view, the installers represented Carpetland’s interests. Customer complaints were directed to Carpetland and not to the individual installers. It was Carpetland who worked to resolve any problems arising from poor or substandard installation. Carpetland’s attention to problem resolution indicates that it considered it in its best interests to work with customers when installation work was poorly performed. If Carpetland’s interests were not implicated by the installation, then Carpetland would have let the customer deal directly with the installer in the event of problems. This was not the case and therefore supports a finding that the installers represented Carpetland’s interests.