                                  Illinois Official Reports

                                          Appellate Court



                    C.R. England, Inc. v. Department of Employment Security,
                                   2014 IL App (1st) 122809



Appellate Court              C.R. ENGLAND, INC., a Foreign Corporation, Plaintiff-Appellee, v.
Caption                      THE DEPARTMENT OF EMPLOYMENT SECURITY, an
                             Administrative Agency of the State of Illinois, MAUREEN T.
                             O’DONNELL, DIRECTOR OF EMPLOYMENT SECURITY, an
                             Administrative Agency of the State of Illinois; RONALD S.
                             RODGERS, Representative of the Director of Employment Security,
                             an Administrative Agency of the State of Illinois, Defendants-
                             Appellants.–C.R. ENGLAND, INC., a Foreign Corporation,
                             Plaintiff-Appellee, v. THE DEPARTMENT OF EMPLOYMENT
                             SECURITY, an Administrative Agency of the State of Illinois; THE
                             DEPARTMENT OF EMPLOYMENT SECURITY, BOARD OF
                             REVIEW, an Administrative Agency of the State of Illinois;
                             MAUREEN T. O’DONNELL, Director of Employment Security, an
                             Administrative Agency of the State of Illinois, Defendants-
                             Appellants.

District & No.               First District, Sixth Division
                             Docket Nos. 1-12-2809, 1-12-2811 cons.

Filed                        March 14, 2014


Held                         The Board of Review of the Department of Employment Security
(Note: This syllabus         properly found that plaintiff was the chargeable last employer of
constitutes no part of the   claimant, a truck driver seeking unemployment benefits, that claimant
opinion of the court but     was discharged by plaintiff for reasons other than employment-related
has been prepared by the     misconduct, and that he was entitled to unemployment benefits, since
Reporter of Decisions        plaintiff failed to establish that the services claimant provided were
for the convenience of       performed outside all of plaintiff’s places of business and the finding
the reader.)                 that claimant was an employee of plaintiff and not an independent
                             contractor was not clearly erroneous, and, likewise, the finding that
                             claimant was discharged for having an accident that was due to
                             negligence and not deliberate misconduct or a willful refusal to follow
                             instructions also was not clearly erroneous.
     Decision Under           Appeal from the Circuit Court of Cook County, Nos. 11-CH-16972,
     Review                   11-CH-14681; the Hon. Margaret Ann Brennan, Judge, presiding.



     Judgment                 Circuit court reversed; Director and the Board of Review affirmed.


     Counsel on               Lisa Madigan, Attorney General, of Chicago (Ann C. Maskaleris,
     Appeal                   Assistant Attorney General, of counsel), for appellants.

                              Johnson & Bell, Ltd., of Chicago (Robert M. Burke, Frank R.
                              Grenard, Garrett L. Boehm, Jr., and Michael J. Linneman, of counsel),
                              for appellee.

                              Scopelitis Garvin Light Hanson & Feary, of Chicago (William D.
                              Brejcha, of counsel), for amici curiae.




     Panel                    PRESIDING JUSTICE ROCHFORD delivered the judgment of the
                              court, with opinion.
                              Justices Hall and Reyes concurred in the judgment and the opinion.




                                               OPINION

¶1         In case number 11 CH 16972, plaintiff, C.R. England, Inc. (CRE), sought administrative
       review of a decision by the Director of the Illinois Department of Employment Security (the
       Department) finding that CRE was the chargeable last employer for William Park’s claim for
       unemployment insurance benefits. In case number 11 CH 14681, CRE also sought
       administrative review of a decision by the Department’s board of review (Board of Review)
       finding that Mr. Park was eligible for unemployment insurance benefits under section 602(A)
       of the Unemployment Insurance Act (the Act) (820 ILCS 405/602(A) (West 2010)) because he
       was discharged by CRE for reasons other than employment-related misconduct. The circuit
       court reversed both decisions. Defendants, the Board of Review, Maureen T. O’Donnell,
       Director (Director) of the Department, and Ronald S. Rodgers, representative of the Director
       of the Department, filed this consolidated appeal from the circuit court’s orders reversing the
       Director and the Board of Review. We reverse the circuit court’s orders in both case number 11
       CH 16972 and case number 11 CH 14681 and affirm the Director and the Board of Review.
¶2         Mr. Park, an over-the-road truck driver, hauled freight for CRE, a national trucking
       company, pursuant to an “independent contractor operating agreement” (agreement) entered
       into between them on March 2, 2010. On May 13, 2010, Mr. Park was hauling a trailer for
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       CRE’s customer, Walmart, and as he turned from the highway into a parking lot, he struck a
       utility pole causing thousands of dollars of damage to Walmart’s trailer for which CRE had to
       pay. As a result of the accident, on May 14, 2010, CRE’s safety department disqualified Mr.
       Park from further driving for CRE, and CRE terminated the agreement with him. Mr. Park
       thereafter applied for unemployment insurance benefits.
¶3          A Department claims adjuster found that CRE was the chargeable last employer for Mr.
       Park’s claim for unemployment insurance benefits. CRE protested, contending it was not the
       chargeable last employer because Mr. Park’s services for CRE were excluded from the Act’s
       definition of “employment,” given that Mr. Park’s relationship with CRE was that of an
       independent contractor, not an employee. CRE also contended Mr. Park was ineligible for
       unemployment insurance benefits because he was discharged for employment-related
       misconduct under section 602(A) of the Act (820 ILCS 405/602(A) (West 2010)).
¶4          The administrative proceedings on the “chargeable last employer” issue were separate
       from those on the employment-related-misconduct issue. The facts relative to each issue are as
       follows.

¶5                               I. The “Chargeable Last Employer” Issue
¶6                      A. Evidence Adduced During the Administrative Hearing
¶7         CRE administratively appealed the claims adjustor’s decision that it was the chargeable
       last employer for Mr. Park’s claim for unemployment insurance benefits and the matter was
       heard by the Director’s representative during a January 2011 hearing. At the beginning of the
       hearing, the Director’s representative explained that the issues relevant to determining whether
       CRE was the chargeable last employer for Mr. Park’s claim for unemployment insurance
       benefits included: (1) whether Mr. Park’s services for CRE constituted “employment” under
       section 206 of the Act (820 ILCS 405/206 (West 2010)); and (2) whether Mr. Park’s services
       for CRE were excluded from the Act’s definition of “employment” under the exemptions in
       section 212 of the Act (820 ILCS 405/212 (West 2010)), relating to independent contractors, or
       section 212.1 of the Act (820 ILCS 405/212.1 (West 2010)), relating to truck owner-operators.
¶8         The hearing proceeded and CRE presented one witness, Tricia O’Neal, then-Director of
       CRE’s independent contractor division. The following evidence was adduced during the
       hearing via Ms. O’Neal’s testimony and admitted exhibits.
¶9         CRE, a Utah corporation headquartered in Salt Lake City, is a freight-hauling trucking
       company that operates in 48 states, as well as Canada and Mexico. CRE is a motor carrier with
       an authority issued by both the United States Department of Transportation and the Illinois
       Commerce Commission, and is licensed by the Federal Motor Carrier Safety Administration.
       As such, CRE is an authorized carrier in Illinois. In December 2010, CRE opened an Illinois
       office in the Chicago area.
¶ 10       In mid-November 2009, Mr. Park entered into a student training agreement with CRE in
       order to learn how to drive a truck and haul freight. During his training period, which lasted
       until March 2, 2010, CRE acknowledged him as its employee, as it hired and trained him, and
       paid and issued him a W-2 tax form.
¶ 11       The training program consisted of two phases. During phase one, Mr. Park had on-the-job
       training, under the auspices of a certified driving trainer, and completed a road evaluation and
       certification program. Mr. Park completed phase one in mid-December 2009.
                                                  -3-
¶ 12       During phase two, Mr. Park was assigned as a second seat to an “independent contractor”
       driver and was paid by CRE on a per mile basis. The student training agreement specified that
       at the conclusion of phase two, Mr. Park could choose one of the following career paths: (1)
       become an independent contractor and begin his own business; (2) become an independent
       contractor and a trainer in the second phase of CRE’s training program; (3) remain a CRE
       employee as a second seat with an independent contractor; or (4) remain a CRE employee with
       a company truck.
¶ 13       Mr. Park completed phase two of his training in late February 2010 and then resigned his
       position as a CRE employee to become an independent contractor under the first “career path”
       designated in the student training agreement. On March 2, 2010, Mr. Park entered into the
       independent contractor operating agreement (agreement). Ms. O’Neal confirmed that the
       agreement was prepared “by or at the behest of [CRE]” and that she went over its provisions
       and ensured that it was executed. She explained that CRE has a computer program that
       produced the agreement, and the agreement entered into between CRE and Mr. Park was the
       same one CRE enters into with any driver who wishes to become an independent contractor,
       with the driver’s specific information inserted therein. For example, the agreement named Mr.
       Park and included his personal information, including his address in Glendale Heights, Illinois.
       The agreement referred to Mr. Park as “YOU” or “CONTRACTOR,” and CRE as “WE” or
       “OUR.” Its preamble provided that CRE “wish[es] to utilize independent contractors to assist
       in OUR motor carrier business”; that Mr. Park possesses equipment “which is suitable for use
       in OUR business”; and that Mr. Park is “willing to perform personally *** certain functions
       related to the operation of the equipment in OUR business.”
¶ 14       The agreement provided that it could be terminated by either CRE or Mr. Park at any time
       and for any reason upon 30 days’ written notice to the other. The agreement also contained a
       choice of law provision, stating: “This Agreement shall be interpreted under the laws of the
       United States and the State of Utah, without regard to the choice-of-law rules of such State or
       any other jurisdiction.”
¶ 15       In order to drive for CRE, Mr. Park needed to lease or buy a truck that complied with
       CRE’s weight, length and age requirements. On March 2, 2010, Mr. Park leased a truck from
       Opportunity Leasing, Inc., d/b/a Horizon Truck Sales and Leasing (Horizon). Ms. O’Neal
       confirmed that CRE and Horizon have the same street address and post office box mailing
       address in Salt Lake City. Ms. O’Neal acknowledged that a 2001 decision from the Utah
       Department of Workforce Services stated that Horizon was “a company owned and operated
       by [CRE].” Ms. O’Neal testified that to the best of her knowledge nothing changed relative to
       the relationship between CRE and Horizon from 2001 to the time Mr. Park leased his truck
       from Horizon in 2010. However, she subsequently testified that she had no knowledge as to
       whether CRE owns Horizon and she testified that CRE and Horizon are separate corporations.
¶ 16       Under federal law (see 49 C.F.R. § 376.1 et seq. (2012)), in order to operate the truck on
       behalf of CRE, Mr. Park had to lease the truck back to CRE, as the licensed carrier that has the
       federal and state issued motor carrier authority. Accordingly, the agreement contained a
       provision noting that Mr. Park leased the truck to CRE and would operate under CRE’s motor
       carrier authority. However, Mr. Park could contract with other motor carriers and drive for
       them in addition to CRE.
¶ 17       Once Mr. Park executed the agreement with CRE, leased the truck from Horizon, and
       leased the truck back to CRE, he began hauling freight for CRE. Mr. Park worked for CRE’s
                                                   -4-
       “dedicated division,” driving a “dedicated route” for CRE’s “dedicated account,” Walmart,
       five to six days each week. Walmart would inform CRE about the load to be transported and
       the times at which it was to be picked up and then delivered, which a CRE driver manager
       would communicate to Mr. Park when offering him the load. Mr. Park would report to the
       Walmart distribution center in Sterling, Illinois, where he attached his truck to a Walmart
       trailer and then transported it to an assigned transportation point, either another Walmart
       distribution center or a Walmart retail store in Illinois or another state.
¶ 18        Ms. O’Neal testified that Mr. Park set his own work hours by being available for loads and
       then either accepted or rejected them when offered by CRE. Once Mr. Park accepted a load, he
       chose his own route between the pickup and delivery points, and was paid per mile based on an
       industry-standard rate. The agreement contained certain requirements that Mr. Park had to
       abide by in terms of loading and unloading freight, such as when he could and could not use the
       services of a “lumper,” someone to help load and unload freight.
¶ 19        CRE’s independent contractors, including Mr. Park, were paid $0.80 to $1.53 per mile,
       while its acknowledged employee drivers were paid $0.25 to $0.49 per mile. Independent
       contractors were paid more per mile than acknowledged employee drivers because they were
       not entitled to company benefits (i.e., insurance, paid vacations, retirement plan) and were
       responsible for certain business expenses.
¶ 20        Various provisions of the agreement described the expenses for which Mr. Park was
       responsible, including workers’ compensation insurance, vehicle insurance, vehicle
       maintenance and repairs, drivers license fees and permits, and costs related to operating and
       licensing the truck. However, CRE provided Mr. Park with certain financial assistance and
       equipment. Specifically, under the agreement, CRE reimbursed Mr. Park 100% for tolls he
       paid while operating in Illinois and other specified states. Also, Mr. Park participated in CRE’s
       “fuel cap program,” which allowed him to pay a discounted price for fuel used in hauling
       freight for CRE. And, CRE provided and installed satellite communications equipment in Mr.
       Park’s truck and paid all messaging usage charges so that he could communicate with CRE’s
       driver managers.
¶ 21        In addition, CRE put programs in place to assist Mr. Park in securing health insurance,
       truck and liability insurance, and occupational accident insurance. CRE offered a truck
       investment fund, where it would take out funds from Mr. Park’s weekly check in order for him
       to put a down payment on a truck should he wish to buy one. CRE also advised Mr. Park about
       a business consulting and tax preparation company for independent contractors called
       Owner-Operator Solutions, Inc., and pursuant to the agreement he authorized deductions from
       his weekly check for business consulting, bookkeeping and tax preparation services.
¶ 22        CRE issued Mr. Park a 1099 tax form and he was responsible for filing his own
       self-employment tax forms as an independent contractor.
¶ 23        After the accident, CRE’s safety department disqualified Mr. Park from further driving for
       it, and then on May 14, 2010, CRE terminated the agreement. That same day, Mr. Park
       terminated the vehicle lease with Horizon and relinquished possession of the truck.

¶ 24                                 B. The Administrative Decision
¶ 25        The Director’s representative issued his recommended decision in which he concluded: (1)
       Illinois law applied to determine whether CRE was the chargeable last employer for Mr. Park’s

                                                   -5-
       claim for unemployment insurance benefits; and (2) for purposes of the Act, Mr. Park was an
       employee of CRE, not an independent contractor or a truck owner-operator and, therefore,
       CRE was the chargeable last employer for Mr. Park’s claim for unemployment insurance
       benefits. The Director then issued her decision, adopting and affirming the recommended
       decision. We will more fully discuss the Director’s decision later in this opinion.

¶ 26                             II. Employment-Related-Misconduct Issue
¶ 27        A. Initial Determination and Evidence Adduced During the Administrative Hearing
¶ 28        CRE protested that Mr. Park was ineligible for unemployment insurance benefits under
       section 602(A) of the Act (820 ILCS 405/602(A) (West 2010)) because he was discharged for
       employment-related misconduct. A Department claims adjuster determined that Mr. Park was
       eligible for unemployment insurance benefits because he was discharged by CRE for an
       accident, not for employment-related misconduct. CRE administratively appealed that
       decision and the matter was heard by a Department referee during a December 2010 hearing.
       Three witnesses testified during the hearing: Mr. Park, Ms. O’Neal, and Larry Luke, a member
       of CRE’s safety department.
¶ 29        Mr. Park testified that on May 13, 2010, he was hauling a Walmart trailer for CRE. As he
       turned from the highway into a parking lot, he did not allow enough room for the trailer to clear
       a utility pole, and so the back of the trailer hit that pole. Once Mr. Park pulled into the parking
       lot, he immediately notified CRE and the police of the accident, and subsequently was ticketed
       by the police for leaving the roadway. That was the first accident he had while driving for
       CRE.
¶ 30        Mr. Luke testified he spoke with Mr. Park about the accident. Mr. Park told Mr. Luke that
       he hit the utility pole because he made the turn into the parking lot too sharp and had not looked
       in his mirror. Mr. Park admitted to Mr. Luke that the accident was his fault and that he had
       received a ticket. As a result of the accident, CRE was responsible for over $31,000 in damages
       to Walmart’s trailer.
¶ 31        Mr. Luke and Ms. O’Neal testified that on May 14, 2010, Mr. Park was disqualified by the
       CRE safety department from further driving for CRE as a result of the accident, and that CRE’s
       independent contractor division terminated the agreement that same day.

¶ 32                                  B. The Administrative Decision
¶ 33       After the hearing, the referee issued his decision in which he determined that Mr. Park was
       discharged for reasons other than employment-related misconduct and so was eligible for
       unemployment insurance benefits under section 602(A) of the Act. CRE administratively
       appealed that decision to the Board of Review, which affirmed the referee’s decision. We will
       more fully discuss the Board of Review’s decision later in this opinion.

¶ 34                             III. The Circuit Court Proceedings
¶ 35      CRE sought administrative review of both decisions, filing a separate complaint for
       administrative review from each. Case number 11 CH 16972 involved CRE’s complaint for
       administrative review of the Director’s decision finding that it was the chargeable last
       employer for Mr. Park’s claim for unemployment insurance benefits. Case number 11 CH
       14681 involved CRE’s complaint for administrative review of the Board of Review’s decision
                                                    -6-
       finding that Mr. Park was eligible for unemployment insurance benefits under section 602(A)
       of the Act because he was discharged for reasons other than employment-related misconduct.
       The circuit court denied CRE’s motion to consolidate the two cases, but ordered that they
       proceed together. On August 22, 2012, the circuit court entered its orders: (1) reversing the
       Director’s decision in case number 11 CH 16972 that CRE was the chargeable last employer
       for Mr. Park’s claim for unemployment insurance benefits; and (2) reversing the Board of
       Review’s decision in case number 11 CH 14681 that Mr. Park was discharged for reasons other
       than employment-related misconduct and, thus, was eligible for unemployment insurance
       benefits under section 602(A) of the Act.

¶ 36                                  IV. The Consolidated Appeal
¶ 37       Defendants, the Department, Maureen T. O’Donnell, Director of the Department, and
       Ronald S. Rodgers, representative of the Director of the Department, timely appealed from the
       circuit court order in case number 11 CH 16972 reversing the Director. Defendants, the
       Department, the Board of Review, and Maureen T. O’Donnell, Director of the Department,
       timely appealed from the circuit court order in case number 11 CH 14681 reversing the Board
       of Review. The appeals were consolidated. We granted leave to the American Trucking
       Associations, Inc., the Chamber of Commerce of the United States of America, and the
       Trucking Industry Defense Association, to file an amici curiae brief in support of CRE 1.
¶ 38       First, we address defendants’ appeal from the circuit court’s order in case number 11 CH
       16972 reversing the Director’s finding that CRE was the chargeable last employer for Mr.
       Park’s claim for unemployment insurance benefits. Then we will address defendants’ appeal
       from the circuit court’s order in case number 11 CH 14681 reversing the Board of Review’s
       finding that Mr. Park was discharged for reasons other than employment-related misconduct
       and so was eligible for unemployment insurance benefits under section 602(A) of the Act.

¶ 39       V. The Director’s Finding That CRE Was the Chargeable Last Employer for Mr. Park’s
                               Claim for Unemployment Insurance Benefits
¶ 40       On administrative review, we review the final decision of the agency, not the decision of
       the circuit court. Abbott Industries, Inc. v. Department of Employment Security, 2011 IL App
       (2d) 100610, ¶ 15. Here, the final administrative decision was the Director’s decision on the
       chargeability issue. Accordingly, we review whether the Director was correct in her decision
       that CRE was the chargeable last employer for Mr. Park’s claim for unemployment insurance
       benefits. Review of the Director’s decision requires us to set forth the pertinent sections of the
       Unemployment Insurance Act.
¶ 41       “The Unemployment Insurance Act (Act) (820 ILCS 405/100 et seq. (West 2000)),
       adopted in 1937, provides economic relief to those who are involuntarily unemployed, through
       the collection of compulsory contributions from employers and the payment of benefits to
       eligible unemployed persons. [Citations.] Liability for contributions and eligibility for benefits
       is dependent, in part, on the existence of an ‘employment’ relationship. The determination of
       whether such a relationship exists is not controlled by common law principles of master and

          1
           The amici curiae brief largely mirrors CRE’s arguments and, therefore, will not be separately
       addressed.
                                                   -7-
       servant and independent contractor. Rather, we must look to the statutory definitions, which
       are more inclusive than the common law. [Citations.] Thus, a person who is regarded at
       common law as an independent contractor may nonetheless be considered an employee under
       the Act. [Citations.]” AFM Messenger Service, Inc. v. Department of Employment Security,
       198 Ill. 2d 380, 396-97 (2001).
¶ 42       Section 206 of the Act defines “employment” in relevant part as “any service ***
       performed by an individual for an employing unit.” 820 ILCS 405/206 (West 2010).
       “Employing unit” includes a corporation such as CRE, “which has or *** had in its employ
       one or more individuals performing services for it within this State.” 820 ILCS 405/204 (West
       2010). Section 207 of the Act provides in relevant part:
               “The term ‘employment’ shall include an individual’s entire service, within or both
               within and without this State, if
                   ***
                   B. The service is not localized in any State but some of the service is performed in
               this State and (1) the base of the operations *** is in this State[.]” 820 ILCS 405/207
               (West 2010).
¶ 43       “The expansive definition of ‘employment’ is circumscribed by section 212 of the Act,
       which carves out an exemption for services performed by ‘independent contractors.’ ” AFM,
       198 Ill. 2d at 397. Section 212 states in pertinent part:
               “Service performed by an individual for an employing unit *** 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 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 2010).
¶ 44       The Act’s expansive definition of “employment” is also circumscribed by section 212.1 of
       the Act, which carves out an exemption for services performed by truck owner-operators.
       Section 212.1 states in pertinent part:
               “The term ‘employment’ shall not include services performed by an individual as an
               operator of a truck, truck-tractor, or tractor, provided the person or entity to which the
               individual is contracted for service shows that the individual:
                                                    ***
                   (6) Maintains a separate business identity, offering or advertising his or her services
               to the public, by displaying its name and address on the equipment or otherwise.” 820
               ILCS 405/212.1 (West 2010).
¶ 45       Defendants argue that the Director correctly determined that Mr. Park was an employee of
       CRE under sections 206 and 207 of the Act in that he performed services for CRE, an
       employing unit, in Illinois and his base of operations was the Walmart distribution center in

                                                    -8-
       Sterling, Illinois. Defendants argue that Mr. Park did not fall under the section 212 independent
       contractor exemption or the section 212.1 truck owner-operator exemption and, thus, that CRE
       was the chargeable last employer for Mr. Park’s claim for unemployment insurance benefits.
       CRE responds that the Act does not apply here because the choice of law provision in the
       agreement between Mr. Park and CRE provides: “This Agreement shall be interpreted under
       the laws of the United States and the State of Utah, without regard to the choice-of-law rules of
       such State or any other jurisdiction.” CRE contends that the Director erred in applying the Act
       here, and that instead she should have applied Utah law to determine Mr. Park’s claim for
       unemployment insurance benefits. CRE argues that the Director’s application of the Act, and
       his failure to apply Utah law pursuant to the choice of law provision in the agreement, violated
       the right of the parties to freely contract. See U.S. Const., art. I, § 10; Ill. Const. 1970, art. I,
       § 16. The choice of law determination is a legal issue subject to de novo review. Mendez v.
       Atlantic Painting Co., 404 Ill. App. 3d 648, 650 (2010).
¶ 46       CRE’s choice of law contention is without merit. The choice of law provision in the
       agreement provides that Utah law governs the interpretation of the agreement; pursuant
       thereto, Utah law would apply if Mr. Park’s claim for unemployment insurance benefits was a
       right provided for in the agreement that was subject to interpretation. However, Mr. Park’s
       claim for unemployment insurance benefits was not a right provided for in the agreement and,
       thus, was not subject to the agreement’s choice of law provision for contract interpretation.
       Rather, in filing his claim for unemployment insurance benefits, Mr. Park asserted a statutory
       right under the Act, not a contractual right pursuant to his agreement with CRE. Accordingly,
       the Director correctly looked to the Act (and to Illinois law interpreting the Act) to determine
       whether CRE was the chargeable last employer for Mr. Park’s claim for unemployment
       insurance benefits.
¶ 47       We proceed to examine whether the Director correctly determined that CRE was the
       chargeable last employer for Mr. Park’s claim for unemployment insurance benefits under the
       Act. As discussed earlier in this opinion, CRE’s liability for contributions under the Act, and
       Mr. Park’s eligibility for unemployment insurance benefits, is dependent on the existence of an
       employment relationship between Mr. Park and CRE. The Act defines “employment” in
       sections 206 and 207 as any service performed by an individual for an employing unit, and
       includes an individual’s entire service, both within and without Illinois, if the service is not
       localized in any one state but some of the service is performed in Illinois and the base of
       operations is in Illinois. 820 ILCS 405/206, 207 (West 2010). CRE does not dispute that it was
       an employing unit, nor does it argue that the Director erred in finding that Mr. Park performed
       services for it in Illinois and that the base of operations was in Illinois such that Mr. Park’s
       relationship with CRE would ordinarily fall within the section 206 and section 207 definition
       of “employment”; rather, CRE contends on appeal that no such employment relationship
       existed because Mr. Park fell within (1) the independent contractor exemption to sections 206
       and 207 set forth under section 212 of the Act; and (2) the truck owner-operator exemption set
       forth in section 212.1. First we analyze whether the independent contractor exemption applies.
       Then we analyze whether the truck owner-operator exemption applies.

¶ 48                    A. The Section 212 Independent Contractor Exemption
¶ 49       As we discussed earlier in this opinion, section 212 of the Act sets forth three requirements
       for the independent contractor exemption to apply here: (1) that Mr. Park was free from CRE’s
                                                    -9-
       control or direction over the performance of his services; (2) the services he provided were
       outside the usual course of CRE’s business or were performed outside all of CRE’s places of
       business; and (3) Mr. Park was engaged in an independently established trade, occupation,
       profession or business. 820 ILCS 405/212 (West 2010).
¶ 50        CRE bears the burden of proving that the section 212 exemption applies. Jack Bradley, Inc.
       v. Department of Employment Security, 146 Ill. 2d 61, 75 (1991). “Because the three
       conditions of section 212 are phrased in the conjunctive, all three conditions must be satisfied
       for the independent-contractor exemption to apply.” AFM, 198 Ill. 2d at 397. “The terms of the
       three statutory elements dictate whether the exemption operates, and the designation or
       description that the parties apply to their relationship is not controlling.” Cohen Furniture Co.
       v. Department of Employment Security, 307 Ill. App. 3d 978, 982 (1999) (citing 56 Ill. Adm.
       Code 2732.200(b)). “Therefore, even though the standard-form contract utilized by the parties
       in this case purports to be an independent contractor agreement, that designation does not
       control.” Cohen Furniture Co., 307 Ill. App. 3d at 982. “In addition, because the Act was
       passed with the public welfare in mind, its provisions should be liberally construed in favor of
       inclusion.” AFM, 198 Ill. 2d at 398.
¶ 51        The determination of whether Mr. Park was an independent contractor under section 212 of
       the Act is a mixed question of law and fact subject to review under the clearly erroneous
       standard. SMRJ, Inc. v. Russell, 378 Ill. App. 3d 563, 571-72 (2007). The Director’s decision
       will be deemed clearly erroneous only where “the reviewing court, on the entire record, is ‘left
       with the definite and firm conviction that a mistake has been committed.’ ” AFM, 198 Ill. 2d at
       395 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
¶ 52        In this case, the Director found that CRE had failed to meet its burden as to all three
       conditions of section 212. Because the inability to satisfy any one condition will defeat CRE’s
       claim for an independent-contractor exemption, it is not necessary for us to consider whether
       all three conditions have been satisfied. AFM, 198 Ill. 2d at 398; SMRJ, Inc., 378 Ill. App. 3d at
       573-74. Instead, we focus on the second condition (section 212(B)), which requires CRE to
       prove that Mr. Park’s services were either outside CRE’s usual course of business or
       performed outside all of CRE’s places of business. 820 ILCS 405/212 (West 2010). As the two
       factors set forth in section 212(B) are in the alternative, CRE need only demonstrate the
       existence of one to satisfy section 212(B).
¶ 53        First we address whether CRE proved the first factor in section 212(B), that Mr. Park’s
       services were outside CRE’s usual course of business. Then we address whether CRE proved
       the second factor in section 212(B), that Mr. Park’s services were performed outside all of
       CRE’s places of business.
¶ 54        To determine whether CRE proved the first factor in section 212(B), that Mr. Park’s
       services fell outside CRE’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.” Carpetland
       U.S.A., Inc. v. Illinois Department of Employment Security, 201 Ill. 2d 351, 386 (2002). For
       example, “when one is in the business of selling a product, sales calls made by sales
       representatives are in the usual course of business because sales calls are necessary. [Citation.]
       When one is in the business of dispatching limousines, the services of chauffeurs are provided
       in the usual course of business because the act of driving is necessary to the business.
       [Citation.]” Id.

                                                   - 10 -
¶ 55       In the present case, the Director determined that Mr. Park’s services in leasing a truck from
       Horizon and then leasing it back to CRE pursuant to federal leasing regulations, and in hauling
       freight in said truck for CRE’s dedicated account pursuant to instructions from CRE
       driver-managers, were necessary to the business of CRE as a freight-hauling trucking company
       and motor carrier and, thus, were in the usual course of business. We cannot say the Director’s
       decision was clearly erroneous such that we are left with the definite and firm conviction that a
       mistake has been committed, given that CRE’s freight-hauling and motor carrier business
       would not exist without drivers such as Mr. Park to lease and drive the trucks and haul the
       freight. Accordingly, we find that CRE failed to prove the first factor in section 212(B)’s
       exemption for independent contractors, that Mr. Park’s services were outside its usual course
       of business.
¶ 56       Next, we address whether CRE proved the second factor in section 212(B)’s exemption for
       independent contractors, that Mr. Park’s services were provided outside of all CRE’s places of
       business. Chicago Messenger Service v. Jordan, 356 Ill. App. 3d 101 (2005), is instructive.
       Chicago Messenger Service (CMS) was a messenger delivery service that utilized couriers to
       pick up, transport, and deliver packages. Id. at 103. In 1992, the Department determined that
       CMS was engaged in an employment relationship with the couriers for the years 1989 and
       1990 and issued an assessment against CMS for unpaid unemployment insurance contributions
       plus interest for those years. Id. CMS filed a protest, arguing that the couriers were
       independent contractors under section 212(B) instead of employees and, thus, that CMS owed
       no unemployment insurance contributions. Id. at 102-03. A hearing was held before the
       Director’s representative. Id. at 103.
¶ 57       At the hearing, the testimony showed that after customers placed orders for package
       deliveries, the orders were dispatched to the couriers, who made the pickups and deliveries by
       car or bicycle. Id. The couriers were not required to accept any particular assignments for
       deliveries, nor were they required to work certain hours or fulfill a certain quota of deliveries.
       Id. The couriers were paid after they provided CMS with a weekly invoice of their deliveries.
       Id.
¶ 58       The Director ultimately found, in pertinent part, that CMS had not proved that the couriers
       were independent contractors under section 212(B). Id. at 104. Instead, the Director found that
       the couriers were employees for whom CMS owed more than $125,000 plus interest for unpaid
       unemployment insurance contributions for 1989 and 1990. Id. at 102. On administrative
       review, the circuit court affirmed the Director. Id. at 104. CMS appealed. Id.
¶ 59       The issue on appeal was whether CMS had proved the second factor of the section 212(B)
       exemption for independent contractors, specifically, that the couriers had performed their
       service outside of all of CMS’s places of business. Id. at 107. After extensive analysis of case
       law, the appellate court (sometimes referred to as the CMS court) held that for purposes of
       section 212(B), an employer’s place of business extends to any location where workers
       regularly represent the employer’s interests. Id. at 115-16. The CMS court also noted:
                   “The nature of the package delivery business here *** requires the couriers to
               perform their services at various locations. Because the delivery of packages, like the
               transport of passengers, requires travel from one place to another, the services involved
               in this function must be performed at various locations. Therefore, we think it logical to
               conclude that *** the couriers represent CMS’ interests when they provide their
               services at these various locations. ***
                                                    - 11 -
                                                   ***
                    *** [I]t stands to reason that [CMS’s] interests are represented during the
                performance of that [courier] service and that the place of business includes travel
                between one location and another. Therefore, the couriers perform their services on the
                roadways, which are, then, for purposes of section 212(B), the place of business.” Id.
¶ 60        In other words, the CMS court held that the couriers represented CMS’s interests and, thus,
       performed their services in CMS’s place of business, whenever they traveled the roadways
       picking up and delivering their packages. Accordingly, as CMS failed to satisfy its burden
       under section 212(B) of showing that the couriers performed their service outside of all of
       CMS’s places of business, the independent contractor exemption did not apply. Id. at 116.
¶ 61        In the present case, the nature of CRE’s freight-hauling business required Mr. Park to pick
       up freight at the Walmart distribution center in Sterling, Illinois, transport the freight over the
       roadways, and delivery it to various Walmart distribution centers and Walmart retail stores in
       Illinois or another state. As in CMS, we think it logical to conclude that Mr. Park represented
       CRE’s interests when picking up the freight at the Walmart distribution center in Sterling,
       Illinois, when transporting the freight along the roadways, and when delivering the freight to
       the other Walmart distribution centers and/or Walmart retail stores. Accordingly, CRE’s place
       of business extended to all the locations where Mr. Park provided these freight-hauling
       services; thus, CRE failed to meet the second condition for finding that Mr. Park was an
       independent contractor under section 212(B), specifically, CRE failed to prove that Mr. Park’s
       services were performed outside all of CRE’s places of business.
¶ 62        Because CRE failed to satisfy its burden under section 212(B), the Director’s finding that
       Mr. Park was an employee of CRE, and not an independent contractor, was not clearly
       erroneous.
¶ 63        CRE next argues that certain federal transportation law (49 U.S.C. § 14102 and attendant
       federal regulations) preempts section 212(B) and therefore the Director erred in considering
       section 212(B) when determining whether CRE satisfied its burden of proving that Mr. Park
       was an independent contractor. The supremacy clause of the United States Constitution states:
       “This Constitution, and the Laws of the United States *** shall be the supreme Law of the
       Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or
       Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. “The supremacy
       clause has been interpreted by the United States Supreme Court to mean that Congress has the
       power to preempt state law [citation] provided, of course, that it is acting within the powers
       granted to it by the Constitution when it does so [citation]. However, because of the
       extraordinary nature of this power and its implications for the critical political balance between
       the state and federal governments, the United States Supreme Court has cautioned that it is a
       power we must assume Congress does not exercise lightly.” Performance Marketing Ass’n v.
       Hamer, 2013 IL 114496, ¶ 49.
¶ 64        “Consistent with this admonition, the Supreme Court has held that preemption analysis
       must begin with the presumption that Congress did not intend to supplant state law. [Citations.]
       Where a state statute is claimed to be preempted by an act of Congress *** the language used
       in the federal legislation is the best evidence of whether or not Congress intended it to have
       preemptive effect.” Id. ¶ 50.


                                                   - 12 -
¶ 65       The supremacy clause preempts state law in three circumstances: (1) when the express
       language of a federal statute indicates an intent to preempt state law; (2) when the scope of a
       federal regulation is so pervasive that it implies an intent to occupy a field exclusively; and (3)
       when state law actually conflicts with federal law. Coram v. State of Illinois, 2013 IL 113867,
       ¶ 71. The key inquiry in preemption cases is the objective of Congress in enacting the
       particular statute. Id. Federal preemption presents a question of law subject to de novo review.
       People v. Williams, 235 Ill. 2d 178, 186 (2009).
¶ 66       In the present case, CRE contends 49 U.S.C. § 14102 and attendant federal regulations,
       which give the Secretary of the federal Department of Transportation regulatory authority over
       the leasing of motor vehicles used in interstate commerce, preempt section 212(B) of the Act.
       We disagree. With respect to the first circumstance of preemption (express preemption), there
       is no language in 49 U.S.C. § 14102 and the attendant federal regulations expressly preempting
       section 212(B) of the Act. With respect to the second circumstance of preemption, whether
       Congress implied an intent in 49 U.S.C. § 14102 and the attendant federal regulations to
       preempt section 212(B) of the Act, Western Ports Transportation, Inc. v. Employment Security
       Department, 41 P.3d 510 (Wash. Ct. App. 2002), is instructive. Western Ports similarly
       addressed whether 49 U.S.C. § 14102 and attendant federal regulations preempt state
       employment security law. The Western Ports court stated:
               “[F]ederal regulations permit motor carriers operating in interstate commerce to utilize
               owners/drivers to serve the carriers’ customers under lease arrangements ***. Such
               lease arrangements are heavily regulated to insure that lessee/common carriers remain
               completely responsible for the possession, control, use, and operation of the leased
               equipment during the term of the lease. 49 CFR § 376.12(c)(1) (‘The lease shall
               provide that the authorized carrier lessee shall have exclusive possession, control and
               use of the equipment for the duration of the lease. The lease shall further provide that
               the authorized carrier lessee shall assume complete responsibility for the operation of
               the equipment for the duration of the lease.’) But 49 CFR § 376.12(c)(4) specifically
               provides that nothing in subsection (c)(1) is intended to affect whether the lessor or
               driver provided by the lessor is an independent contractor or an employee of the
               lessee/common carrier. Rather, ‘[a]n independent contractor relationship may exist
               when a carrier lessee complies with 49 U.S.C. 14102 and attendant administrative
               requirements.’ 49 CFR § 376.12(c)(4) (Emphasis added).
                   Thus, motor carriers operating in interstate commerce are permitted to provide
               transportation services to their customers utilizing leased vehicles-with drivers, and
               such drivers (including owner drivers) may be independent contractors or they may be
               employees, but even if they are independent contractors, the carriers cannot escape
               ultimate responsibility for safety of operations and equipment. The same regulations
               apply to leased trucks-with-drivers whether or not the drivers are considered
               employees of the motor carrier or independent contractors.
                   Title 49 of the Code of Federal Regulations, at Part 376, contains detailed
               regulations governing such lease arrangements. ***
                   On their face, these regulations are designed to fix responsibility for the safe
               operation of leased vehicles-with-drivers in interstate commerce on the carrier, and to
               provide a paper trail by which such responsibility can be audited; they are not designed
               to protect motor carriers from responsibility under state laws governing unemployment
                                                    - 13 -
                benefits. *** [W]hen Congress has intended to prohibit state taxing authorities from
                ‘burdening’ interstate commerce, it has done so, expressly, clearly and understandably.
                Nowhere in the federal motor carrier statutes and regulations *** has Congress even
                mentioned state unemployment law.
                    ‘The purpose of Congress is the ultimate touchstone’ in every preemption case.
                [Citation.] We address preemption claims with the presumption that Congress did not
                intend to supplant state law. [Citation.] We decline to infer that Congress, in enacting
                federal motor carrier law, intended to preempt state unemployment law. These two
                types of statutes and regulations have very different policy objectives. Federal
                transportation law promotes public safety and provides for the easy flow of goods in
                interstate commerce. State unemployment law provides temporary assistance to
                workers during periods of involuntary unemployment.” Western Ports, 41 P.3d at
                518-19.
¶ 67        We agree with the reasoning utilized in Western Ports and similarly decline to infer that in
       enacting 49 U.S.C. § 14102 and attendant federal regulations, Congress impliedly intended to
       preempt state unemployment insurance law (such as section 212(B) of the Act), where the two
       types of statutes and regulations have different policy objectives.
¶ 68        CRE argues, though, that even if the first two circumstances of federal preemption (express
       and implied preemption) do not apply here, the third circumstance (preemption when state law
       conflicts with federal law) does apply. Specifically, CRE argues that section 212(B) of the Act
       defines “independent contractor” in such a way as to absolutely eliminate a truck driver in
       Illinois from being considered an independent contractor and, as such, conflicts with 49 U.S.C.
       § 14102 and the attendant federal regulations, which specifically provide that the level of
       control that must be exerted by a common carrier over its drivers does not prevent those drivers
       from being considered independent contractors.
¶ 69        We disagree with CRE’s preemption argument. Addressing a similar issue regarding
       whether the Colorado employment security act conflicted with other laws, the Colorado Court
       of Appeals held that “it is legally permissible for an individual to be an employee for
       unemployment tax liability purposes at the same time the individual is considered to be an
       independent contractor for other purposes under other laws.” SZL, Inc. v. Industrial Claim
       Appeals Office, 254 P.3d 1180, 1186 (Colo. App. 2011). See also Western Ports, 41 P.3d at
       520 (holding that the “only employment defined by the [unemployment insurance] act is the
       employment intended to be covered by the act for the purpose of the act and none other”).
¶ 70        Similarly, in the present case, section 212(B)’s definition of independent contractor is for
       purposes of the Act only and none other; thus, in upholding the Director’s determination that
       Mr. Park was in covered employment with CRE under sections 206 and 207 of the Act and not
       an independent contractor under section 212(B) of the Act, the effect is only to determine that
       Mr. Park was entitled to unemployment insurance benefits and that CRE was the chargeable
       last employer. That is not to say that motor carriers and drivers may not establish independent
       contractor relationships outside the context of the Act. Accordingly, section 212(B)’s
       definition of independent contractor for unemployment insurance purposes does not conflict
       with 49 U.S.C. § 14102 and the attendant federal regulations regarding transportation law. In
       the absence of a conflict, the third circumstance of preemption does not apply here.
¶ 71        CRE next argues that even if section 212(B) of the Act is not preempted by 49 U.S.C.
       § 14102 and its attendant federal regulations, section 212(B) is preempted by the Federal
                                                    - 14 -
       Aviation Administration Authorization Act of 1994 (the FAA Authorization Act) (49 U.S.C.
       § 14501(c)(1) (2012)) applicable to motor carriers. Section 14501(c)(1) (49 U.S.C.
       § 14501(c)(1) (2012)) states:
                “[A] State *** may not enact or enforce a law, regulation, or other provision having the
                force and effect of law related to a price, route, or service of any motor carrier *** with
                respect to the transportation of property.”
¶ 72       In construing the FAA Authorization Act, the United States Supreme Court has recently
       held:
                “Although § 14501(c)(1) otherwise tracks the [Airline Deregulation Act of 1978’s]
                air-carrier preemption provision, [citation], [the FAA Authorization Act] formulation
                contains one conspicuous alteration–the addition of the words ‘with respect to the
                transportation of property.’ That phrase ‘massively limits the scope of preemption’
                ordered by the [the FAA Authorization Act]. [Citation.] *** [F]or purposes of [the
                FAA Authorization Act] preemption, it is not sufficient that a state law relates to the
                ‘price, route, or service’ of a motor carrier in any capacity; the law must also concern a
                motor carrier’s ‘transportation of property.’ [Citation.]” Dan’s City Used Cars, Inc. v.
                Pelkey, 569 U.S. ___, ___, 133 S. Ct. 1769, 1778-79 (2013).
¶ 73       In the present case, CRE argues that the effect of section 212(B) of the Act is to preclude
       CRE from utilizing independent contractor drivers in Illinois, thereby impacting its services
       with respect to the transportation of property. Accordingly, CRE contends section 212(B) falls
       within the scope of the FAA Authorization Act’s preemption.
¶ 74       We disagree. As discussed earlier in this opinion, section 212(B) defines independent
       contractor for purposes of the Act only and does not prohibit motor carriers and drivers from
       establishing independent contractor relationships outside the context of the Act. Since section
       212(B)’s definition of independent contractor is limited to determining whether an individual
       is entitled to unemployment insurance benefits under the Act and does not otherwise prohibit
       or preclude motor carriers from utilizing independent contractor drivers in Illinois, CRE has
       failed to show that section 212(B) relates to the “service of [a] motor carrier *** with respect to
       the transportation of property” (49 U.S.C. § 14501(c)(1) (2012)), so as to fall within the
       massively limited scope of preemption ordered by the FAA Authorization Act.

¶ 75                    B. The Section 212.1 Truck Owner-Operator Exemption
¶ 76       Next, we address CRE’s argument that Mr. Park’s services for CRE fell within the
       exemption for employment set forth in section 212.1 of the Act (the truck owner-operator
       exemption) and, thus, that the Director erred in finding that CRE was the chargeable last
       employer for Mr. Park’s claim for unemployment insurance benefits. Section 212.1 sets forth
       various conditions in the conjunctive that CRE must prove in order for the exemption to apply.
       Because the inability to satisfy any one condition will defeat CRE’s claim for a truck
       owner-operator exemption (Davis Bancorp, Inc. v. Board of Review of the Department of
       Employment Security, 393 Ill. App. 3d 135, 142 (2009)), it is not necessary for us to set forth
       and consider whether all the conditions have been satisfied. Instead, we focus on the sixth
       condition, which states in pertinent part:



                                                    - 15 -
               “The term ‘employment’ shall not include services performed by an individual as an
               operator of a truck, truck-tractor, or tractor, provided the person or entity to which the
               individual is contracted for service shows that the individual:
                                                    ***
                       (6) Maintains a separate business identity, offering or advertising his or her
                   services to the public, by displaying its name and address on the equipment or
                   otherwise.” 820 ILCS 405/212.1 (West 2010).
¶ 77       CRE presented no evidence that Mr. Park offered or advertised his services to the public by
       displaying the name and address of his separate business identity on his leased truck. Nor does
       CRE point to any evidence that Mr. Park “otherwise” offered or advertised his services to the
       public. Accordingly, the Director’s finding that Mr. Park did not fall within the section 212.1
       truck owner-operator exemption was not clearly erroneous.

¶ 78           VI. The Board of Review’s Finding That Mr. Park Was Discharged for Other Than
                                      Employment-Related Misconduct
¶ 79       Next, we address defendants’ appeal from the circuit court’s order reversing the Board of
       Review’s decision that CRE discharged Mr. Park for reasons other than employment-related
       misconduct and, thus, that Mr. Park was eligible for unemployment insurance benefits under
       section 602(A) of the Act. We review the Board of Review’s decision, not the decision of the
       circuit court. Abbott Industries, Inc., 2011 IL App (2d) 100610, ¶ 15. Whether an employee
       committed misconduct under the Act is a mixed question of law and fact subject to the clearly
       erroneous standard of review. Id. ¶ 16.
¶ 80       Individuals who are discharged for misconduct are ineligible to receive unemployment
       benefits under section 602(A) of the Act. 820 ILCS 405/602(A) (West 2010). “[T]hree
       elements must be proven to establish disqualifying misconduct under [section 602(A) of] the
       Act: (1) that there was a ‘deliberate and willful’ violation of a rule or policy; (2) that the rule or
       policy of the employing unit was reasonable; and (3) that the violation either has harmed the
       employer or was repeated by the employee despite previous warnings.” Messer & Stilp, Ltd. v.
       Department of Employment Security, 392 Ill. App. 3d 849, 856 (2009). “In construing the
       requirement that an employee’s violations of the employer’s rules must be ‘deliberate and
       willful,’ courts have repeatedly held that this language reflects the General Assembly’s intent
       that only those who intentionally act contrary to their employers’ rules should be disqualified
       on the basis of misconduct, while those who have been discharged because of their inadvertent
       or negligent acts, or their incapacity or inability to perform their assigned tasks, should receive
       benefits.” Abbott Industries, Inc., 2011 IL App (2d) 100610, ¶ 19.
¶ 81       The Board of Review found that Mr. Park was not discharged for employment-related
       misconduct, stating:
                   “The claimant [Mr. Park] was employed as a driver. He started working for the
               employer [CRE] on 11/16/2009. The claimant last performed work and earned wages
               on 5/14/2010. The claimant was discharged on the premise that he was involved in an
               accident. On 5/13/2010, the claimant hit a power pole when he made a turn into a
               parking lot. The damages resulting from the accident were $31,000.00. The claimant
               did receive a citation. The claimant testified that although he drove to the best of his
               ability, that he took the turn too sharp, not leaving enough room for the trailer to clear
                                                    - 16 -
               the telephone pole. The claimant immediately notified the police and the employer.
               The claimant did not have any previous accidents. There was no evidence presented
               that the claimant did anything deliberate to cause the accident. *** In this case, the
               claimant drove to the best of his ability, but was discharged for being involved in an
               accident. The preponderance of the evidence showed that the claimant did not meet the
               employer’s expectations due to negligence, which is not misconduct under the Act. ***
               In this case the employer failed to show that the claimant’s accident was the result of
               any deliberate conduct or willful refusal to follow instructions. Therefore, the claimant
               was discharged for reasons other than misconduct connected with work and is not
               subject to any disqualification.”
¶ 82       The Board of Review’s finding that Mr. Park was discharged for reasons other than
       employment-related misconduct and, thus, was eligible for unemployment insurance benefits
       under section 602(A) of the Act, was supported by the evidence and was not clearly erroneous.
       Also, CRE apparently concedes the issue, and has waived review thereof, by failing to respond
       to defendants’ arguments in their appellant’s brief that the Board of Review’s finding was not
       clearly erroneous. Ill. S. Ct. R. 341(i) (eff. Feb. 6, 2013).
¶ 83       For all the foregoing reasons, the Director’s decision in case number 11 CH 16972, and the
       Board of Review’s decision in case number 11 CH 14681, were supported by the evidence and
       should not have been disturbed on judicial review. We reverse the circuit court in case number
       11 CH 16972 and case number 14681 and affirm the Director and the Board of Review. As a
       result of our disposition of this case, we need not address the other arguments on appeal.

¶ 84      Circuit court reversed; Director and the Board of Review affirmed.




                                                  - 17 -
