dissenting:
The majority appears to find the Department and the trial court made their determinations based on political motivation, rather than a disciplined analysis of the statutory factors. Because I do not believe the Director’s decision was clearly erroneous, I would affirm the judgment of the circuit court.
I do agree with the majority that there is a need for consistency and uniformity in order to give businesses guidance in this area. Significantly, the issues in this case have already been resolved in Cohen Furniture Co. v. Department of Employment Security, 307 Ill. App. 3d 978, 718 N.E.2d 1058 (1999), on strikingly similar facts. In Cohen, Cohen Furniture sold home furnishings, including carpeting, with the cost of installation sometimes included in the price. Cohen Furniture was always willing to arrange installation and chose the installer from a list it maintains. Cohen, 307 Ill. App. 3d at 980, 718 N.E.2d at 1060. Installers provided their own tools and minor materials, but Cohen furnished the primary materials, carpet and padding. Cohen, 307 Ill. App. 3d at 983, 718 N.E.2d at 1062. The court looked to the totality of the circumstances and found that Cohen Furniture controlled the carpet installers through the contract, the routine it established for installation, the quality controls it created by requiring installers to provide a one-year guarantee and handling customer complaints, and by setting the prices and rates. Cohen, 307 Ill. App. 3d at 981-84, 718 N.E.2d at 1061-63. The facts here are nearly identical and warrant the same conclusion that Carpetland controlled its installers and measurers.
Carpetland established a routine for its installers, similar to the routine found in Cohen, by contracting with the customer and setting the date and approximate time for installation. Carpetland required the installers to furnish their own minor materials, such as glue, nails, etc., while providing the installers with the primary materials, carpet and padding. Installers picked up these materials, along with the contract and measuring diagrams, at Carpetland’s store and then delivered these materials to the designated jobsite. Most importantly, the customer’s contract price reflected both carpeting as well as the installation costs, from which Carpetland made a profit.
Carpetland also controlled the quality of the work, as in Cohen. Carpetland required all installers to perform the job “in a neat, workmanlike manner in accordance with the job specifications” and to guarantee the installation to Carpetland for one year. Carpetland handled all customer complaints regarding installation and then assigned the original installer to resolve the problem. If the installer no longer worked for Carpetland, Carpetland paid for the repairs or replacements, partly funded by the required “retainage agreements.” These facts all suggest the same result as in Cohen: that the installers and measurers were employees and not independent contractors.
In its discussion of section 212(A) (820 ILCS 405/212(A) (West 1998)), the majority criticizes the Director because she should have considered the 25 factors delineated in the Code. 56 Ill. Adm. Code § 2732.200(g) (1990). However, there is nothing in the record to show the Director ignored the Code. To the contrary, the Director’s decision specifically references the relevant factors found in section 2732.200(g). As the majority itself notes, those factors are not mandatory, and the Code does not require an analysis of each illustration. I believe the Director adequately examined the business reality and totality of circumstances in her determination.
Lastly, there are a few facts stated by the majority which I do not believe are completely accurate. In the representative’s factual findings, Carpetland did have the right to inspect the quality of the installer’s work and exercised this right by sending a representative with the installer for the first four or five assignments, contrary to the majority’s opposite assertion. Additionally, contrary to the majority’s statement that Carpetland was not the guarantor of the installer’s work, Carpetland handled all customer complaints regarding installation and then referred them to the installers. If the original installers no longer worked for Carpetland, Carpetland bore the ultimate responsibility for the repairs. Further, the majority contends that the installers testified that their enterprises “had acquired considerable quantities of tools, representing investments of between $5,000 and $18,000.” 319 Ill. App. 3d at 1078. I find no mention of any fact supporting this assertion in the representative’s findings of fact.
For these reasons, I dissent.