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                                      Appellate Court                         Date: 2016.11.08
                                                                              14:29:14 -06'00'




                      E-Z Movers, Inc. v. Rowell, 2016 IL App (1st) 150435



Appellate Court           E-Z MOVERS, INC., Plaintiff-Appellee, v. JAY ROWELL, Director
Caption                   of Employment Security, and THE DEPARTMENT OF
                          EMPLOYMENT SECURITY, Defendants-Appellants.



District & No.            First District, Second Division
                          Docket No. 1-15-0435


Rule 23 order filed       June 28, 2016
Rule 23 order
withdrawn                 July 27, 2016
Opinion filed             August 2, 2016


Decision Under            Appeal from the Circuit Court of Cook County, No. 12-L-14463; the
Review                    Hon. Robert Lopez Cepero, Judge, presiding.



Judgment                  Circuit court judgment reversed.
                          Director’s decision reinstated.



Counsel on                Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
Appeal                    Solicitor General, and Linda Boache-Ansah, Assistant Attorney
                          General, of counsel), for appellants.

                          Ryan Helgeson and Wessels Sherman Joerg, both of Liszka, Laverty
                          Seneczko, P.C., of Chicago, for appellee.
     Panel                    JUSTICE SIMON delivered the judgment of the court, with opinion.
                              Presiding Justice Pierce and Justice Neville concurred in the judgment
                              and opinion.

                                               OPINION

¶1         Plaintiff, E-Z Movers, Inc., sought administrative review in the circuit court of Cook
       County of a decision by defendants, Illinois Department of Employment Security (IDES),
       and its Director, Jay Rowell (together, the Department). Pursuant to an audit and an
       administrative hearing, the Department determined that E-Z Movers failed to establish that
       the exemptions from “employment” contained in section 212 of the Unemployment
       Insurance Act (Act) (820 ILCS 405/212 (West 2006)) applied to the workers in question. The
       Department found that the workers were “employees” and not “independent contractors” and
       issued an assessment in the amount of $25,014.70 in unemployment insurance contributions
       against E-Z Movers. The Director upheld the Department’s decision.
¶2         On administrative review, the circuit court reversed the Director’s decision and
       concluded that the drivers and helpers were “independent contractors” and not “employees”
       under section 212 of the Act. The Department appeals, contending the circuit court erred in
       reversing the Director’s decision. For the following reasons, we reverse the circuit court’s
       judgment and affirm the Director’s decision.

¶3                                          BACKGROUND
¶4         E-Z Movers is a furniture moving company that hires drivers and helpers to perform
       physical labor. In 2009, after one of the E-Z Movers’ workers sought unemployment
       insurance benefits from the Department, the Department realized that the company had not
       reported the workers’ wages to it. The Department audited E-Z Movers for 2007 and 2008.
¶5         An administrative hearing was conducted before the Director’s representative on October
       25, 2011. The Department’s auditor testified that E-Z Movers presented him with various
       1099 tax forms for 2008. He concluded that 92 people, either drivers or helpers, should have
       been reported as employees. The auditor testified that the primary function of the business
       was to move furniture and noted that the drivers and helpers completed their services with
       moving trucks that were owned by E-Z Movers. The auditor stated that the 1099 recipients
       were not independently established in their own business. He also concluded that 89 drivers
       and helpers who had been classified as independent contractors in 2007 were actually
       employees.
¶6         Albert Stein, E-Z Movers’ accountant, testified that “quite a few factors” would indicate
       that the drivers and the helpers were independent contractors and not employees. Stein stated
       that the drivers and the helpers “bear the risk of loss” of being responsible for payment if
       they make mistakes. For instance, if a truck driver accidentally drove into a ditch, the driver
       would have to pay for the tow truck to pull the truck out of a ditch. Stein stated that the
       drivers and helpers had the right to refuse to accept a job and were free to decide how to do
       the moving job.
¶7         When asked to about the factors listed in section 212 of the Act, Stein asserted that the
       drivers and helpers were not under E-Z Movers’ direction and control because the company’s


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       only input was to provide the job to the movers. Stein testified that the drivers and helpers
       were in the same business as E-Z Movers noting that the distinction was that the drivers and
       helpers did not go “about the business seeking customers [w]hereas E-Z Movers, the
       corporation, does seek customers.” Stein was uncertain as to whether the majority of the
       drivers and helpers were independently established but he was familiar with one person who
       had “his reputation at stake in any job with any customer.” Stein also asserted that the
       workers were not wholly dependent on E-Z Movers to continue to operate because they had
       the necessary skills and “those skills are mobile.” Stein noted that E-Z Movers owned all the
       moving trucks. He stated that he was unsure whether E-Z Movers provided workers’
       compensation insurance for the drivers and helpers.
¶8         Arie Hagoel, E-Z Movers’ president, testified that he made the decision to classify the
       particular drivers and helpers, who were skilled workers, as independent contractors. The
       unskilled workers who needed training were employees. Hagoel testified that the drivers and
       helpers preferred to be independent contractors. He asserted that E-Z Movers did not direct
       or control them because, among other things, they could decline the job for any reason.
       Hagoel stated that the drivers and helpers were free to work with other moving companies or
       use their skills at any job they were offered. He also testified that the drivers and helpers
       were free to set their own schedules within the customers’ time frame. The drivers and
       helpers were also responsible for paying for their own tools, such as gloves and boots. In
       addition, the workers would pay the cost for any additional expenses necessary to complete
       the move at the final destination if they were unable to park the truck close enough. The
       additional expense would be charged to the customer for the service and that income would
       be distributed to the drivers and helpers.
¶9         Hagoel explained that E-Z Movers entered into written contracts with the customers who
       were being charged hourly. The drivers and helpers obtained a percentage of that amount
       based on various factors. The workers were paid every two weeks, but if they did not have
       any work during the previous weeks, they would not get paid.
¶ 10       Following the administrative hearing, E-Z Movers submitted a copy of its independent
       contractor affirmation (“contract”) and its independent contractor’s long distance contract as
       requested by the Director’s representative. The contract stated that the individual worked for
       himself and that he was responsible for “procuring all applicable insurance,” including his
       own workers’ compensation insurance.
¶ 11       The long distance agreement provided that the “contractor” agrees to “maintain, deliver,
       and move all jobs assigned by E-Z Movers, Inc. in its long distance moving and relocation
       service.” Contactor would determine the “method, details, and means of performing the ***
       services in a professional and prudent manner.” The agreement stated that E-Z Movers would
       provide the moving truck but that the worker had to obtain any other tools necessary to
       complete the assignments and that the contractor would not be allowed to use the truck for
       any other moving or relocation company without the explicit consent of E-Z Movers.
¶ 12       On November 15, 2011, the Director’s representative issued his recommended decision.
       He noted that E-Z Movers failed to satisfy all the requirements listed in section 212 of the
       Act and that the drivers and helpers were employees and not independent contractors. E-Z
       Movers filed their objections to the decision of the Director’s representative.
¶ 13       On July 18, 2012, the Director issued his final administrative decision upholding the
       Department’s finding. E-Z Movers filed its complaint for administrative review in the circuit

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       court. At the hearing, E-Z Movers argued that the Department failed to fully consider all the
       enumerated factors in the Act in arriving at its decision. The circuit court reversed the
       Director’s decision. This appeal followed.

¶ 14                                            ANALYSIS
¶ 15       This court reviews the decision of the agency, rather than that of the circuit court. Sudzus
       v. Department of Employment Security, 393 Ill. App. 3d 814, 819 (2009). Judicial review of
       an agency’s decision extends to all questions of law and fact presented by the record. Cinkus
       v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). The
       standard applied on review of an agency’s decision depends upon whether the issue
       presented is one of fact or of law. Carpetland U.S.A., Inc. v. Illinois Department of
       Employment Security, 201 Ill. 2d 351, 369 (2002). When reviewing purely factual findings,
       the agency’s findings and conclusions are deemed to be prima facie true and correct and,
       thus, are reviewed under a manifest weight of the evidence standard. Id.
¶ 16       Our review here is under the clearly erroneous standard, as our supreme court has
       previously determined that “whether certain workers are independent contractors under
       section 212 of the Act is such a mixed question of law and fact, subject to review for clear
       error.” Id (citing AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill.
       2d 380, 396 (2001)). An agency decision is clearly erroneous where the entire record leaves
       the reviewing court with the definite and firm conviction that a mistake has been made. Hurst
       v. Department of Employment Security, 393 Ill. App. 3d 323, 327 (2009).
¶ 17       On appeal, the Department contends the Director’s determination that the workers in
       question were “employees” rather than “independent contractors” under section 212 of the
       Act was not an error. The Department argues that E-Z Movers failed to show that (1) the
       drivers and helpers were free from its control and direction, (2) the drivers and helpers were
       not outside the employer’s usual course of business, and (3) the drivers and helpers were
       engaged in an independently established business. Accordingly, the Department maintains
       that E-Z Movers was responsible for making unemployment insurance contributions on their
       behalf.
¶ 18       The Act provides economic relief to involuntarily unemployed individuals through the
       collection of compulsory contributions from employers and the payment of benefits to
       eligible unemployed persons. 820 ILCS 405/100 (West 2006). Liability for contributions and
       eligibility for benefits is dependent, in part, on the existence of an “employment
       relationship.” AFM Messenger Service, 198 Ill. 2d at 396; Carpetland U.S.A., 201 Ill. 2d at
       354 (“Under the Act, an employer’s liability for making contributions and an employee’s
       eligibility for benefits is dependent, in part, on the existence of an employment relationship
       between them.”). To determine whether an employment relationship exists, we must consider
       statutory definitions, which are more inclusive than the common-law principles of master and
       servant and independent contractor. AFM Messenger Service, 198 Ill. 2d at 396.
¶ 19       Section 212 of the Act provides an exemption from employment for services performed
       by independent contractors where three conditions are met. Section 212 provides:
                “Service performed by an individual for an employing unit, whether or not such
                individual employs others in connection with the performance of such services, shall
                be deemed to be employment unless and until it is proven in any proceeding where
                such issue is involved that—

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                   A. Such individual has been and will continue to be free from control or direction
              over the performance of such services, both under his contract of service and in fact;
              and
                   B. Such 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; and
                   C. Such individual is engaged in an independently established trade, occupation,
              profession, or business.” 820 ILCS 405/212 (West 2006).
¶ 20       The Act sets forth the three section 212 conditions in the conjunctive, and therefore, all
       three conditions must be satisfied for the independent-contractor exemption to apply. AFM
       Messenger Service, 198 Ill. 2d at 398 (“[b]ecause the inability to satisfy any one [section
       212] condition will defeat an employer’s claim for an independent-contractor exemption,”
       the court found it only necessary to consider one section 212 condition); Chicago Messenger
       Service v. Jordan, 356 Ill. App. 3d 101, 105 (2005).

¶ 21                                   I. Section 212(A) of the Act
¶ 22       The Department argues that the Director did not clearly err in determining that E-Z
       Movers failed to satisfy section 212(A) of the Act. Under the Act, an independent contractor
       must be “free from control or direction over the performance” of the services he provides.
       820 ILCS 405/212(A) (West 2006). “ ‘Direction or control’ within the meaning of Section
       212(A) of the Act means that an employing unit has the right to control and direct the
       worker, not only as to the work to be done but also how it should be done, whether or not that
       control is exercised.” 56 Ill. Adm. Code 2732.200(g), amended at 25 Ill. Reg. 2003 (eff. Jan.
       18, 2001).
¶ 23       The Illinois Administrative Code contains a list of 25 factors that the Department
       examines to determine whether direction or control exists. Carpetland U.S.A., 201 Ill. 2d at
       374. Some of the 25 factors to be considered are these: “does the employing unit issue
       assignments or schedule work, set quotas or time requirements”; “does the employing unit
       have the right to change the methods used by the worker in performing his or her services”;
       “does the employing unit require the worker to follow a routine or schedule”; “does the
       employing unit require the worker to report to a specific location and/or at regular intervals”;
       “does the employing unit require the worker to furnish a record of his or her time to the
       firm”; “does the employing unit require the worker to perform services a specific number of
       hours per day or per week”; “does the employing unit engage the worker on a permanent
       basis”; “does the employing unit reimburse the worker for expenses incurred”; “is the worker
       eligible for a pension, a bonus, paid vacation or sick pay”; “does the employing unit carry
       workers’ compensation insurance on the worker”; “does the employing unit furnish the
       worker with materials and supplies, tools or equipment”; “does the employing unit furnish
       the worker with transportation, samples, a drawing account, business cards, an expense
       account, or order blanks”; “does the employing unit allow the worker to sell noncompetitive
       lines or engage in other employment”; “does the employing unit restrict the worker in terms
       and conditions of sale and choice of customers”; “does the employing unit assign or limit the
       territory in which the individual performs”; “does the employing unit set the price and credit
       terms for the products or service”; “does the employing unit reserve the right to approve


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       orders or contracts”; and “does the employing unit have a right to discharge.” 56 Ill. Adm.
       Code 2732.200(g)(1)-(25), amended at 25 Ill. Reg. 2003 (eff. Jan. 18, 2001).
¶ 24       E-Z Movers argues that the Director’s determination was clearly erroneous when he
       failed to explain each factor that was not satisfied even though the Director referenced the 25
       factors in its decision. Specifically, E-Z Movers attempts to analyze every single factor
       mainly arguing that the drivers and helpers were free from the direction and control of E-Z
       Movers when the workers set their own schedule, can turn out jobs, do not punch a clock,
       determine the method details and means of performing their services, and supply several
       tools and instrumentalities to perform their services. In addition, E-Z Movers contends that
       the Director gave inadequate consideration and weight to some of the factors that he
       analyzed.
¶ 25       We note that E-Z Movers’ contention is not that the Director had made a mistake to any
       of the facts but that the Director’s determination was erroneous due to the weight that he
       gave to the factors and the evidence in the case. But on administrative review, a reviewing
       court does not reweigh the evidence that was before the agency. Livingston v. Department of
       Employment Security, 375 Ill. App. 3d 710, 715 (2007). Instead, after reviewing the evidence
       presented, the court asks whether the agency’s decision was clearly erroneous. Id. The 25
       factors will be considered in light of the “type of business subject to review and the
       relationship being examined.” 56 Ill. Adm. Code 2732.200(g), amended at 25 Ill. Reg. 2003
       (eff. Jan. 18, 2001). Thus, not all factors will be relevant in every case. Carpetland U.S.A.,
       201 Ill. 2d at 374-75. In addition, the result will be determined by “the business reality or
       totality of circumstances,” not by the answer to any particular question or group of questions.
       56 Ill. Adm. Code 2732.200(g), amended at 25 Ill. Reg. 2003 (eff. Jan. 18, 2001).
¶ 26       Here, the Director’s determination that E-Z Movers exercised direction and control over
       the workers was not clearly erroneous. The record indicates that, after referencing the
       regulation and all the 25 factors, the Director focused in his written opinion on the questions
       and contentions that he deemed most relevant in the case. The Director noted that E-Z
       Movers had the right to hire and fire the workers; E-Z Movers provided the workers with the
       moving truck, which was the most important tool needed for the job; the drivers and the
       helpers could not assign their obligations to other persons without E-Z Movers’ approval;
       and E-Z Movers scheduled the jobs with customers and limited the workers’ use of the trucks
       without its permission.
¶ 27       Although E-Z Movers’ witnesses testified that the drivers and helpers could reject
       assignments for any reason, the Director found this claim to be contradicted by the language
       of the independent contractor agreement which specified that “contractor agrees to: maintain,
       deliver and move all jobs assigned by E-Z Movers in its log [sic] moving and relocation
       service.” (Emphasis added.) The Director then resolved the conflicting evidence finding that
       the helpers and drivers could not actually decline any type of jobs.
¶ 28       Next, the Director noted other evidence that indicated that E-Z Movers exercised control
       and direction over its drivers and helpers: the independent contract agreement required that
       the services be “professional and prudent” and, also, the workers could be dismissed for not
       following a route approved by the Department of Transportation. The Director also pointed
       out that while the workers were required to purchase some tools and instrumentalities to
       perform the services, the most important piece of equipment, the moving truck, was provided


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       by E-Z Movers. The Director evaluated the entire evidence and concluded that E-Z Movers
       failed to establish that section 212(A) exempts the drivers and helpers.
¶ 29        Based on the entire record, even though the Director did not specify each factor in its
       decision, it did not clearly err in determining that E-Z Movers exercised control and direction
       over its drivers and helpers. Moreover, nothing obligates the Director to make a written
       finding as to each factor, and his findings need be only specific enough to permit an
       intelligent review of his decision. See Morgan v. Department of Financial & Professional
       Regulation, 388 Ill. App. 3d 633, 655 (2009). Therefore, we find that, based on the totality of
       the circumstances, the Director’s decision that E-Z Movers failed to establish that section
       212(A) exempts the drivers and helpers was not clearly erroneous. Carpetland U.S.A., 201
       Ill. 2d at 375.
¶ 30        Because the inability to satisfy any one condition of the three listed in section 212 will
       defeat an employer’s claim for an independent-contractor exemption, we could stop our
       analysis here and uphold the Director’s decision. AFM Messenger Service, 198 Ill. 2d at 398.
       Nonetheless we will analyze the other two provisions.

¶ 31                                  II. Section 212(B) of the Act
¶ 32       In order to establish independent-contractor status under section 212(B) of the Act, the
       services performed must be 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.” 820 ILCS 405/212(B) (West 2006). The
       Director found that the drivers’ and helpers’ services were not outside E-Z Movers’ usual
       course of business. “To determine whether services fell outside McMahon’s usual course of
       business, ‘the key to this inquiry is whether the services are necessary to the business of the
       employing unit or merely incidental.’ ” L.A. McMahon Building Maintenance, Inc. v.
       Department of Employment Security, 2015 IL App (1st) 133227, ¶ 45 (quoting Carpetland
       U.S.A., 201 Ill. 2d at 386).
¶ 33       E-Z Movers argues that the Director erred in its determination that the drivers’ and
       helpers’ services were not outside E-Z Movers’ usual course of business because the workers
       merely performed the physical side of the moving business, while E-Z Movers is in the
       marketing end of the industry.
¶ 34       We disagree. We find no clear error in the Director’s determination that the drivers’ and
       helpers’ services were not outside E-Z Movers’ usual course of business, where a moving
       company would not exist without its workers to physically haul the items. See L.A. McMahon
       Building Maintenance, Inc., 2015 IL App (1st) 133227, ¶ 45 (“[W]e find no clear error in the
       Director’s determination that the window washers’ services in washing windows for
       McMahon Window Washing were not outside McMahon’s usual course of business, where
       McMahon’s window washing business would not exist without window washers to wash
       windows.”).
¶ 35       The Director properly observed that E-Z Movers holds itself out to the public and it is a
       “Chicago Moving Company” providing moving services. E-Z Movers’ primary business
       activity is listed as “MOVING + STORAGE.” Furthermore, the Director correctly
       determined that the drivers and helpers represented E-Z Movers interests “when they wear
       their E-Z Movers uniforms to moving jobs” and “use the trucks owned by [E-Z Movers] that


                                                  -7-
       bear the logo E-Z Movers.” Accordingly, the Director did not err in its determination that the
       drivers and helpers were not outside the usual course of business for a moving company.
¶ 36       We note that E-Z Movers forfeited the argument that the workers’ services was
       performed outside of all places of business of the enterprise as it failed to raise it at the
       administrative hearing, in the circuit court, and on appeal. See Carpetland U.S.A., 201 Ill. 2d
       at 397. Therefore, the Director’s conclusion that E-Z Movers failed to establish that section
       212(B) exempts the drivers and helpers was not clearly erroneous.

¶ 37                                    Section 212(C) of the Act
¶ 38       Section 212(C) of the Act addresses whether the workers are engaged in independently
       established trades, occupations, or business. To meet this part of the test, the entrepreneurial
       enterprise must enjoy a “ ‘degree of economic independence such that the enterprise could
       survive any relationship with the particular person contracting for services.’ ” AFM
       Messenger Service, 198 Ill. 2d at 401 (quoting Jack Bradley, Inc. v. Department of
       Employment Security, 146 Ill. 2d 61, 78 (1991)). The Illinois Administrative Code suggests
       13 factors, no one of which is dispositive, for consideration. SMRJ, Inc. v. Russell, 378 Ill.
       App. 3d 563, 574 (2007). The inquiry focuses on “the business reality or totality of
       circumstances.” 56 Ill. Adm. Code 2732.200(e), amended at 25 Ill. Reg. 2003 (eff. Jan. 18,
       2001). Where workers were not capable of providing their services without dependence upon
       another entity, they will not be considered to have met the statutory requirement set forth in
       section 212(C). SMRJ, Inc., 378 Ill. App. 3d at 574.
¶ 39       Here, the Director did not err in concluding that E-Z Movers failed to show that its
       drivers and helpers could operate without its involvement. E-Z Movers owned all the trucks
       used by its drivers and helpers during the moves. E-Z Movers provided no evidence that any
       of the drivers and helpers owned their own trucks or could operate without one. Similarly,
       the Director properly noted that E-Z Movers had been granted the license to haul goods, and
       no evidence suggested that any individual drivers and helpers had been granted licenses or
       that they could operate without licenses.
¶ 40       The Director acknowledged that the drivers and helpers purchased their own tools such as
       gloves and boots. However, these factors do not establish that the drivers and helpers were
       engaged in a moving business. To the contrary, E-Z Movers failed to present any additional
       evidence showing that the drivers and helpers have “a property interest in the business” that
       they can operate without hindrance from E-Z Movers. In AFM Messenger Service, 198 Ill. 2d
       at 402, our supreme court held that, under section 212(C) of the Act, the drivers’ delivery
       businesses were not established “independently” of the messenger service company when the
       company procured the customers, set delivery prices, provided the delivery tickets to the
       customers, billed the customers, set the commission rate, and paid the drivers. Similarly,
       here, as noted by the Director, E-Z Movers procured all the customers, set the prices,
       determined the drivers’ and helpers’ commissions, provided the assignments, billed the
       customers, set the commissions, and paid the drivers and helpers. Just as in AFM Messenger
       Service, the drivers’ and the helpers’ business was not established independently of E-Z
       Movers.
¶ 41       E-Z Movers contends that the Director erred in its determination when it failed to
       properly evaluate and consider some of the factors listed in section 212(C). For instance, E-Z
       Movers argues that that the workers had the right to work for others and that such a factor

                                                  -8-
       indicates that the workers are established independently of E-Z Movers. But, the fact that an
       individual may also perform services for other companies does not necessarily establish that
       the individual is an independent contractor under section 212(C). Jack Bradley, Inc., 146 Ill.
       2d at 80. The focus of the relevant inquiry is whether the individual workers had businesses
       or occupations that were capable of operation independent of a relationship with the
       employing unit. See Jack Bradley, Inc., 146 Ill. 2d at 80; SMRJ, Inc., 378 Ill. App. 3d at 574.
       Here, E-Z Movers did not present evidence that the drivers and helpers could operate in the
       absence of it or a company alike that would furnish them a moving truck and that would
       procure them customers. Accordingly, the Director did not clearly err in concluding that the
       drivers and helpers did not have an independently established business.
¶ 42       In reaching our conclusion we note again that the question before this court is not
       whether the evidence could have been construed differently, but whether the Director’s
       conclusion was clearly erroneous. Based on the entire record, we find that the Director’s
       determination that the drivers and helpers were employees was not clearly erroneous.
       Therefore, the circuit court erred in reversing the Director’s decision.

¶ 43                                    CONCLUSION
¶ 44      Based on the foregoing, we reverse the judgment of the circuit court. The Director’s
       decision is affirmed.

¶ 45      Circuit court judgment reversed.
¶ 46      Director’s decision reinstated.




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