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10/26/88 B. D. Bennett, D/B/A Good v. the Department of

October 26, 1988

B. D. BENNETT, D/B/A GOOD & PLENTY DRYWALL, PLAINTIFF-APPELLANT

v.

THE DEPARTMENT OF EMPLOYMENT SECURITY, DEFENDANT-APPELLEE

SECTION 212 OF "AN ACT IN RELATION TO A SYSTEM OF UNEMPLOYMENT INSURANCE" (ILL. RE

v.

STAT. 1985, CH. 48, PAR. 322) SETS OUT THE FOLLOWING CONDITIONS WHICH MUST BE MET IN ORDER FOR A WORKER TO BE CONSIDERED AN INDEPENDENT CONTRACTOR:



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

530 N.E.2d 541, 175 Ill. App. 3d 793, 125 Ill. Dec. 383 1988.IL.1577

Appeal from the Circuit Court of Kane County; the Hon. Michael J. Colwell, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. REINHARD AND DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Plaintiff, B. D. Bennett, d/b/a Good and Plenty Drywall, appeals from a judgment of the circuit court of Kane County. The circuit court affirmed the decision of the Illinois Department of Employment Security that plaintiff's workers were not independent contractors as defined by section 212 of "An Act in relation to a system of unemployment insurance" (Ill. Rev. Stat. 1985, ch. 48, par. 322). On appeal, plaintiff contends that he satisfied his burden of proof at the hearing, thus shifting the burden to the IDES and that the agency's decision was against the manifest weight of the evidence. We affirm.

On June 10, 1985, the IDES issued a notice of assessment to plaintiff for unpaid contributions to the unemployment insurance fund. Plaintiff paid the amount due under protest and filed a written protest and request for a hearing, alleging that his workers were independent contractors, not employees. On June 13, 1986, a hearing was held before R. L. Hamilton, a representative of the Director of the IDES.

Plaintiff's first witness was John Malkowski, plaintiff's accountant. Malkowski was present while the IDES auditor examined plaintiff's records. Malkowski testified that the auditor asked him whether certain individuals were subcontractors, and when Malkowski told the auditor that he did not know, the auditor did not undertake any more effort to determine the status of those individuals.

The next witness was Paula Bennett, plaintiff's wife. Paula stated that she is the bookkeeper for the company and also issues the checks. She testified that a number of items included in the auditor's report were checks written to relatives, accountants, bookkeepers, lawyers, and vendors. The plaintiff then testified on his own behalf.

Plaintiff stated that he is a drywall general contractor who bids on drywall installation jobs and then hires people to do the installation. Plaintiff's main offices are in his home, and none of his workers work at his home. Plaintiff hires journeymen who are able to install drywall without any supervision. The workers are required to sign a contract with plaintiff, and the contract states that the individual is an independent contractor. The contract also requires the individual worker to provide his own liability insurance and to pay his own taxes. Plaintiff testified that he did not direct the workers to work certain hours, but merely informed them of the deadline for the job. The workers supplied their own tools, but plaintiff supplied the materials and a special tool which could only be rented. Plaintiff also testified that the workers did drywall installation for other contractors. Plaintiff would visit the jobsite sporadically to check on the progress of the job, and if a worker was not doing an adequate job, plaintiff would fire him or not hire him for the next job. Plaintiff further testified that he would assist his workers when there was an emergency.

The director's representative found that plaintiff did not satisfy the requirements of section 212; therefore, plaintiff's workers were employees, not independent contractors. Plaintiff filed objections to this decision, and the objections were overruled by the Director of the IDES. Plaintiff then filed a complaint for administrative review in the

Plaintiff's first contention is that he satisfied the burden of proof at the hearing. Specifically, he argues that he presented enough evidence to shift the burden to the agency to disprove his evidence. We disagree.

"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 --

A. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his ...


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