                        Illinois Official Reports

                                Appellate Court



                  Weinberg v. Department of Employment Security,
                              2015 IL App (1st) 140490



Appellate Court    ADAM WEINBERG, Plaintiff-Appellee, v. THE DEPARTMENT
Caption            OF EMPLOYMENT SECURITY; DIRECTOR OF DEPARTMENT
                   OF EMPLOYMENT SECURITY; and BOARD OF REVIEW,
                   Defendants-Appellants (William Blair and Company, LLC,
                   Defendant).



District & No.     First District, First Division
                   Docket No. 1-14-0490



Filed              May 11, 2015




Decision Under     Appeal from the Circuit Court of Cook County, No. 12-L-51401; the
Review             Hon. Robert Lopez Cepero, Judge, presiding.



Judgment           Reversed.




Counsel on         Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
Appeal             Solicitor General, and Paul Racette, Assistant Attorney General, of
                   counsel), for appellants.

                   Katten & Temple, LLP, of Chicago (Nancy A. Temple, of counsel),
                   for appellee.
     Panel                   JUSTICE CUNNINGHAM delivered the judgment of the court, with
                             opinion.
                             Presiding Justice Delort and Justice Harris concurred in the judgment
                             and opinion.


                                              OPINION

¶1          This appeal involves the decision of the Board of Review (the Board) of the Department of
       Employment Security (the Department) finding Adam Weinberg ineligible for unemployment
       benefits because he was a partner in William Blair and Company (WBC). The Board found
       that Weinberg could not receive unemployment benefits because his compensation as a partner
       did not constitute wages as defined by section 500(E) of the Unemployment Insurance Act (the
       Act) (820 ILCS 405/500(E) (West 2010)). The circuit court reversed the Board’s decision,
       finding that a portion of Weinberg’s income constituted wages. On appeal, the Department
       contends the evidence established Weinberg’s status as a partner, thus making him ineligible
       for benefits. We affirm the decision of the Board.
¶2          In 2000, Weinberg began working for WBC as an equity sales representative. In 2007,
       Weinberg accepted WBC’s invitation to become a principal in the company. In 2008, WBC
       underwent a restructuring in which it became a subsidiary of WBC Holdings (WBCH), which
       is a limited partnership. When WBCH was formed, Weinberg became 1 of 170 principals or
       partners. WBCH also had approximately 900 nonprincipal employees.
¶3          On March 6, 2011, Weinberg filed an application for unemployment compensation. On
       May 6, 2011, a Department claims adjudicator found Weinberg eligible for unemployment
       benefits because he received remuneration for services that he performed during the base
       period for establishing benefits, which was the four quarters from October 1, 2009, to
       September 30, 2010. The claims adjudicator found that Weinberg received $354,230.70 in
       base period wages, comprised of $0 in the fourth quarter of 2009, and $118,076.90 in each of
       the first three quarters of 2010. The adjudicator found that Weinberg was compensated for his
       services, which were performed under the direction and control of WBC.
¶4          WBC requested reconsideration, asserting Weinberg was ineligible for benefits because he
       was a partner in the company. On July 20, 2011, the Department claims adjudicator reversed
       its decision and found that Weinberg’s compensation did not fall under the Act’s definition of
       wages. In August 2011, Weinberg appealed that decision.
¶5          A Department referee held a telephone hearing on Weinberg’s claim over the course of
       four days between September and November 2011. Relevant testimony was provided by
       Weinberg and by two representatives of WBC/WBCH: John Smith, chief human resources
       officer; and Art Simon, general counsel.
¶6          Smith testified that Weinberg was a partner of the firm and was paid a percentage of
       profits. The percentage was based on the “number of points” and Weinberg’s function in the
       firm. The company used the terms “principal” and “partner” interchangeably.
¶7          All principals of WBC have the authority to bind the firm in conducting its business.
       WBCH has two types of principals: point principals and production principals. Weinberg was
       a production principal. Both receive guaranteed payments annually that are calculated prior to


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       the determination of profits. Point principals received compensation based on company profits,
       and production principals were compensated based on the revenue that they generated for the
       firm. The salary of a production principal includes an annual amount of $36,000 to be paid
       “against production,” whereas the point principals received $100,000 per year.
¶8          Simon testified that WBCH files a partnership tax return. Eight principals of WBC
       comprise an executive committee. All of the profits generated by WBC are distributed to the
       holding company of WBCH and are then distributed to the partners. The $36,000 annual
       amount that Weinberg received was not wages but instead was derived from the partnership’s
       profits. Weinberg also received a monthly payment based on “his commissions that were
       generated by the clients [for] which he had responsibility.” In addition, he was paid a share of
       the firm’s profits, paid quarterly, based on points and the capital he had invested in the
       company.
¶9          WBC presented several exhibits. A January 2007 WBC memo stated that new principals of
       WBC were considered to be self-employed individuals, rather than employees, and that
       income tax and payroll taxes would not be withheld from their compensation. Principals were
       required to pay self-employment tax.
¶ 10        Weinberg’s income was reported on an Internal Revenue Service Schedule K-1, titled
       “Partner’s Share of Income, Deductions, Credits” from 2007 through 2010. Copies of
       Weinberg’s Schedules K-1 for 2009 and 2010 were admitted into evidence. Those schedules
       list WBCH’s partnership employer identification number and Weinberg’s identifying number
       as a partner, along with Weinberg’s share of profit, loss and capital and other financial
       information. WBC also presented company documents and memoranda referring to Weinberg
       as a partner.
¶ 11        Weinberg testified that upon becoming a principal in 2007, he invested $200,000 in capital
       in WBC. His rate of pay varied and was “based directly on the commissions” that he generated,
       as opposed to being paid out of the firm’s profits. Weinberg acknowledged that he indicated on
       his tax return that he was a partner but stated that is what he was “instructed to do” and what
       was required by WBCH. When the referee asked Weinberg if he disputed his status as a
       partner, Weinberg responded that he challenged that “the entity acts as a partnership.”
¶ 12        On November 22, 2011, the Department referee issued its decision affirming the
       determination that Weinberg was ineligible to receive unemployment benefits. The
       Department found that Weinberg performed services in the sales department “as a part of a
       venture for the common benefit” of the partnership and received commissions and a
       distribution of profits as a partner. The Department found those payments were not wages
       under the Act but rather were profits paid into the partnership. Weinberg appealed to the
       Board.
¶ 13        On March 27, 2012, the Board issued a decision affirming the referee’s denial of benefits.
       Weinberg appealed to the circuit court, which remanded for the Board to issue a new decision
       after determining whether certain proposed exhibits offered by Weinberg should have been
       admitted into evidence.
¶ 14        On September 27, 2012, the Board issued the decision that is the basis of this appeal. The
       Board initially noted that Weinberg’s exhibits were either cumulative or irrelevant to the issues
       raised.



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¶ 15       The Board stated that for Weinberg to receive benefits under the Act, he must be employed
       and performing services for a separate entity. The Board noted that partners cannot be in the
       employ of a partnership, citing Gibson-McPherson-Sutter Live Stock Comm’n Co. v. Murphy,
       384 Ill. 414 (1943), and that each partner is a principal that lacks an identity separate from the
       partnership. The Board determined Weinberg’s services were provided for the common benefit
       of all partners.
¶ 16       The Board found that Weinberg’s pay was based on his share of partnership profits, as
       opposed to wages, and that Weinberg was paid from the profits of the firm based upon his sales
       and his percentage points of ownership in the firm. The Board determined that the guaranteed
       payments and commissions received by Weinberg were generated from the partnership’s
       profits, and the Board noted Weinberg cited no legal authority that his distribution of profits
       should be classified as wages. The Board stated Weinberg’s status as a partner was not
       diminished by the existence of two partner classes or the different methods of calculating the
       distribution of profits to those classes. The Board also stated that prior to Weinberg’s filing of
       an unemployment claim, there was no evidence that Weinberg did not consider himself to be a
       partner in the firm.
¶ 17       The Board found WBC operates as a partnership, not a corporation, for purposes of
       unemployment insurance and that Weinberg could not show that he was an employee. The
       Board concluded Weinberg did not receive any “wages” as defined by section 234 of the Act
       (820 ILCS 405/234 (West 2010)) during the base period in 2009 and 2010 and was thus
       ineligible for unemployment benefits.
¶ 18       On November 1, 2012, Weinberg filed a complaint in the circuit court seeking
       administrative review of the Board’s decision. On January 13, 2014, the circuit court reversed
       the Board’s decision, finding it to be against the manifest weight of the evidence. The circuit
       court found Weinberg’s income was based on both commissions and company profits and that
       his commissions constituted wages under section 234 of the Act. The circuit court remanded
       the case to the Board for a calculation of the amount of wages earned by Weinberg and the
       amount of unemployment benefits he should receive. The Department now appeals that ruling.
¶ 19   ¶ 19 On appeal, the Department contends the Board’s decision that Weinberg was a partner
       and that his compensation as a partner should be upheld. The Department asserts that
       Weinberg’s pay consisted of profit distributions he received as a partner and emphasizes the
       documentation provided by WBC and his investment in the partnership as proof of his partner
       status.
¶ 20       When considering an appeal from a circuit court’s order in an administrative review
       proceeding, this court reviews the decision of the Board and not that of the circuit court, the
       referee or the claims adjudicator. Universal Security Corp. v. Department of Employment
       Security, 2015 IL App (1st) 133886, ¶ 12. This court considers the factual findings of the
       Board of Review to be prima facie true and correct, and our review of such findings is limited
       to whether they are against the manifest weight of the evidence. Wise v. Department of
       Employment Security, 2015 IL App (5th) 130306, ¶ 14.
¶ 21       In this appeal, we review the Board’s determination that Weinberg was a partner and
       therefore was not eligible for unemployment benefits because his remuneration did not
       constitute “wages” as defined by the Act. The parties agree that the issue presents a mixed
       question of law and fact. See Murphy v. Board of Review of the Department of Employment
       Security, 394 Ill. App. 3d 834, 836 (2009) (mixed question of law and fact occurs where the

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       historical facts are admitted or established, the rule of law is undisputed, and the issue is
       whether the facts satisfy the statutory standard). Such questions are reviewed under the clearly
       erroneous standard, where the agency’s decision will be disturbed only where the reviewing
       court is left with the definite and firm conviction that a mistake has been committed. Cinkus v.
       Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 211 (2008).
¶ 22       The receipt of unemployment benefits is conditioned on eligibility under the Act, and the
       burden of establishing eligibility to receive benefits rests upon the claimant. Lojek v.
       Department of Employment Security, 2013 IL App (1st) 120679, ¶ 34. To be eligible for
       benefits, an individual must have been paid wages during a base period. 820 ILCS 405/500(E)
       (West 2010); see also 820 ILCS 405/237(A) (West 2010) (defining “base period” as the first
       four of the last five completed calendar quarters that immediately precede the benefit year).
       The Act defines “wages” as “every form of remuneration for personal services, including
       salaries, commissions, bonuses, and the reasonable money value of all remuneration in any
       medium other than cash.” 820 ILCS 405/234 (West 2010).
¶ 23       The Act defines an “employing unit” to include a partnership. 820 ILCS 405/204 (West
       2010). However, partners themselves are not employees of the partnership. Donaldson v.
       Gordon, 397 Ill. 488, 495 (1947). Thus, in the case of partnership and partner, there is neither
       an employing unit nor an individual rendering service to the employing unit, both of which are
       required under the Act. Id.; see also Wallace v. Annunzio, 411 Ill. 172, 179 (1952). “A person
       cannot be an employee and a partner at the same time in the same business.” Tumminaro v.
       Tumminaro, 198 Ill. App. 3d 686, 693 (1990).
¶ 24       The following evidence supports the Board’s determination that Weinberg was not eligible
       for unemployment benefits due to his partnership status. In 2007, Weinberg became a principal
       in WBC, and after the firm’s reorganization in 2008, Weinberg became a principal/partner in
       WBCH, as evidenced by an agreement in the record signed by Weinberg. Weinberg’s
       compensation consisted of a guaranteed payment derived from partnership profits, another
       monthly amount based on his client base, and a quarterly share of the profits based on the
       points he had and the $200,000 in capital he invested in the company. Further evidence of
       partnership status includes the reporting of Weinberg’s remuneration for tax purposes on an
       Internal Revenue Service Schedule K-1, which pertains to partners. Weinberg also was
       required to pay his own income tax and self-employment tax. Given that evidence, the Board’s
       decision that Weinberg was not eligible for unemployment benefits due to his partnership
       status was not clearly erroneous.
¶ 25       Weinberg contends the Act does not exempt partners of a partnership from receiving
       unemployment benefits. Pointing out that he operated under the supervision of other principals
       and was not a member of the executive committee, Weinberg urges this court to follow the
       circuit court’s determinations that WBC was an “employing unit” and that he earned “wages”
       as defined by the Act.
¶ 26       We again note that our review is of the decision of the Board, not the decision of the circuit
       court. See Universal Security Corp., 2015 IL App (1st) 133886, ¶ 12. The determination of this
       court is based on the considerable volume of evidence contained in the record and the Board’s
       determinations based on those facts. Although Weinberg repeatedly asks this court to look
       beyond the label of “partner” and consider the facts surrounding his relationship with
       WBC/WBCH, the testimony and evidence received by the Board establish WBCH’s status as a
       limited partnership and Weinberg’s status as a partner. Furthermore, Weinberg’s discussion of

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       the characteristics of an independent contractor does not provide him with relief, as section 212
       of the Act exempts independent contractors from receiving unemployment compensation
       benefits. 820 ILCS 405/212 (West 2010).
¶ 27        As a final note, we have taken with the case consideration of Weinberg’s motion to strike a
       portion of the Department’s reply brief. There, the Department asked this court to take judicial
       notice of Weinberg’s repeated admissions of his partnership status, made in a December 2014
       filing in a federal lawsuit against WBC for employment discrimination. The Department
       attached to its reply brief a copy of Weinberg’s federal court filing.
¶ 28        Weinberg asks this court to strike that portion of the reply brief pursuant to Illinois
       Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013) (“Points not argued are waived and shall not
       be raised in the reply brief, in oral argument, or on petition for rehearing.”). In response, the
       Department points out that Weinberg’s filing occurred after the Department filed its initial
       brief in this case in September 2014.
¶ 29        The Department’s contention that Weinberg was a partner is not a new argument raised for
       the first time in its reply brief. That position was thoroughly presented throughout the
       Department’s initial brief to this court. The admissions in Weinberg’s December 2014 federal
       court filing simply offer additional support for the Department’s argument. Accordingly,
       Weinberg’s motion to strike that portion of the Department’s reply brief is denied.
       Furthermore, the record in this case is replete with evidence of Weinberg’s partnership status,
       and thus, the documentation attached to the reply brief is not needed to support our holding.
¶ 30        In conclusion, the Board’s decision that Weinberg was a partner and thus was ineligible for
       unemployment benefits was not clearly erroneous. Accordingly, the order of the circuit court is
       reversed. The decision of the Board denying unemployment compensation benefits to
       Weinberg is affirmed.

¶ 31      Reversed.




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