life should we look directly at the statue should we determine whether the regulation permissibly your hack your ugly describes the statute how to how do we deal with that you should rely on the regulation here you orders because congress empowered delegate at the power to the secretary to interpret in the minister the act so the secretary's exercise of that delegation authority is consistent with congressional intent and here there has been no contention by anyone certainly secretary is not going to make this contention that the regulation is ultra virus or otherwise in permissible of the regulation provides for joint and several liability correct yes sir it doesn't speak about contribution it does not in those words your honor but as many cour adopted what was the state of the common law with respect to contribution among joint several toward features when the statute was and acted in i believe the thirty's i came of the exact year the trend was then developing back to allow contribution and certainly over the ensuing almost century it is now uniformly recognized it would you're telling us is that when the act was adopted congress intended and i'm assuming that the agency read it correctly that joint several liability issues is what congress intended the congress also intended contribution on the contribution was not the norm when the time the act was adopted i think you're on a more nuance what i'm saying is that congress left it to the secretary to interpret the act in the secretary has consistently interpreted the act including in renewals of this regulation as recently the most recent code of federal regulations so i just from two thousand and eighteen has consistently maintained the right of joint of the obligation of you know i don't he also yes i guess there is there any other regulation that defines joint and several liability the way you would like to do that is to encompass a right of contribution or  and is there any circuit that has disagreed this is a compound question i'm sorry is there any circuit that is disagreed with the nd circuit's analysis and herman right i don't believe there's any other did not involve contribution claims between co employers in each of those cases the employer has sought contribution against the complaining employer he so so what herman is on point is that was for contribution between co employers but it didn't address the regulation or auditor and with respect to the nd circuit i think it was a fairly cursory drive by comment that there was no right to cut contribution well it wasn't really it's two or three pages worth of don't agree with it but i why is it wrong it's wrong your honor because of two reasons one it doesn't consider the import of the regulation and secondly it also misunderstands the supreme court's opinion in northwest airlines that case two was not a claim for contribution between co employers it was a claim for contribution between a union and an employer and the supreme court noted there that there was no right joint and several liability there in the course this regulation when it applied to that situation but i think what's more important from the northwest opinions is the supreme court's recognition that a right of contribution is not inequitable to require one to bear all the costs and  quote from the opinion that it would be sound policy to deter all wrongdoers by reducing the likelihood that any will entirely escape liability so the supreme court in northwest airlines fully recognized that a right the contribution is not adverse to the purposes of f l s a and indeed would further those purposes but in that particular case when the contributions between employer and a union there is no joint right no joint liability under the act or under this regulation that doesn't apply to them we have a we have a statute put aside the reg for a nd we have a statute that silent on the right of contribution correct correct or honor and it might be a good policy to have contribution to supreme court says but supreme court always tells us not to impose our policy preferences into statutes what is the basis do we have other than the regulation for reading contribution into the statute i think it's the regulation neurons are supported by the fact that congress has delegated implementation of the interpretation of ministration of this act to the secretary and senate and so i understand your argument and the regulation it's by adopting short and several liability the agency has in fact adopted contribution yes sir that's exactly it and if i might take a moment to address the question of will finish your honor this court has long cautioned against grants of summary judgment on questions of will because they involve fact questions such as intent and motive and that is the case here the secretary does not contend it ever has that employer solutions intentionally violated the act instead it was reckless you should refer that from the record that the secretary does not dispute and this is consistent with the broad overview of the law going to district court where the i was a summary judgment are obviously going to be decided that an employer's a reliance on a knowledgeable rd party to make the f l s a determination like of them employees entitle men to overtime or exemption from overtime that's not the situation though because the person to your client delegated this responsibility knew full well that it should have been different and for some reason was cowed into submission perhaps by this by the rd party insisting that overtime hours should not be paid and overtime r no you're on i respectfully disagree because the undisputed summary judgment record here is that the employer solutions employee did not have a contrary believe that these employees were entitled overtime yes she knew they were working more some of them were working more than forty hours per week wrecked the undisputed summary judgment record is she believed that that they were entitled they were subject to an exemption that the two other employers sink staffing in t b g who had the front line knowledge about what the employees were court has recognized the question where congress acts and the liability of the defendant is statutory the question is what did congress intend and in northwest airlines in texas industries the supreme court recognized even have a right to contribution of all the elements are satisfied even if the policy considerations weigh in favor of recognizing a right in texas industries even countered a similar argument that a common law right to contribution is recognized so should be recognized under that framework the court explained that none of those considerations can compel over whether the right in fact exists whether congress has provided for that right and that's the framework and analysis that northwest airlines and texas industries and as applied by this court and a couple of decisions require looks at whether there's an implied right under the statute or in the absence whether it be appropriate for the court to formulate a remedy under the common law so looking at congress intent for the reasons outlined in the nd circuit's well reasoned decision and harm herman versus ours are there is no right implied under the act and the district court appropriately considered whether to formulate whether a common law remedy would be appropriate under its authority to commie formulate common law and declined to do so i'd also like to address the question of joint and several liability and the department's regulation  and mortgages inc recognized that joint and several liability does not itself equal contribution it's simply illustrates the scope of the remedies that congress itself provided and the question that possible to have jordan's regime  texas industries the proponents of a right of contribution made a very similar argument that the states recognize contribution for jointure features so encouraged the court to adopt it and the court correctly explained that the question must be where the liability statutory what did congress intend and here there's simply no evidence that congress intended to provide a right to contribution i ask you a question about  yes plenty of evidence of willfulness i don't i don't think the other side says there isn't but the other side says but the employee says in my defense i thought they were i thought they were entitled not to pay them willfulness employer must take affirmative steps to ensure that their pay practice here that denial of overtime is in compliance with the act and a unexplained unresearched unquestioned direction from a client not to pay she structured its business so that the payroll processing here was delegated soley to one employee newly hired newly trained and they dispute whether she was subject to proper oversight but it's uncontested that they never once reviewed the payroll in this case for almost two years so she had no supervision and if this court recognizes granted and some suffering permit decisions and forrester you know employer can't simply turn its back on i don't know i doubt that maybe negligence maybe maybe a lot of things trying to figure out let's assume that's not this record you just have a really bad employee she just decides arbitrarily when to give overtime and not overtime does that make the argument does that make the employers conduct willful where the employer has made her responsible for overtime decisions her actions and knowledge in that instance would have to be imputed to the employer yes so here your opponent says her knowledge her state of mind was once the will employer of people who to whom we were sending these people told me that overtime wasn't needed i assume they knew something and so i just did text argued that you know it's h r department and its payroll department made a decision and the court explained that an unexplained decision with no incurring no follow up to determine that was the appropriate decision no explanation of how they arrived into either denying over time as appropriate and that combined with the s s g s giving her this entire responsibility without checking in you know turning its back on the situation without taking any affirmative action to ensure that these employees are paid appropriately is at least a reckless disregard under our circuits cases if we find willfulness that gives rise to an award of liquidated damages correct correct is that is that are you trying to figure out whether in the rest of the country that was also or were unique in that respect i'm not positive your honor i believe i couldn't speak to that whether what the majority of circuits would conclude i know that the cases cited by us as she that would purport to run to the contrary are in the context of the flipside so where a court has not found willfulness or a jury has not found willfulness that wouldn't preclude an employer from being able to demonstrate good faith and objective grounds for believing they were complying but the fact finder has concluded that the conduct is willful it's necessarily considered and rejected evidence of good faith so it's we believe this court's precedent on that issue is entirely correct error for her to follow the client's directive here they repeatedly stated that that was her mistake was not to talk to a supervisor so this argument that it was appropriate and excuses you know precludes summary judgment for them to rely on  excess we believe under the framework applied by the supreme court in this court there is no implied right to contribution and we do know that yes as she before the district court did concede that they asked the court to recognize a right under the common  law but if this court were to reach it we believe that for the reasons outlined by the nd circuit there's no evidence that congress intended an additional or anyone contribution particularly in light of the comprehensive remedial scheme that the f l s say does decisions i don't have the citations at hand but the overwhelming majority of courts have agreed with the nd circuit and concluded that there is no right to country at the court of appeals level there is no case other that recognizes the right correct  want to make sure the record perfectly clear that employer solutions did argue below that it had relied on the other co employers if you look at page thirty three of our supplemental experts are sexperts a record our staff statement of fact number five says quote iesus g relied on sync staffing to ensure accurate information was being provided in iesus g s business model final approval for payroll as provided by the sales recruitment agent in this case think staffing than statement of fact number seven which appears on page thirty four of the excerpts of record states that the payroll coordinator the individual employee i d s as you were talking about quote since the payroll proved to sink staffing for review and approval to  and if that's your position where does that limitation come from so your honor if i could perhaps clarify that argument disrespect that wilfulness for the employer  cannot fairly be based on the fact that a single employee maybe didn't conduct a full blown investigation now if that employee had the requisite state of mind and was willful as making the decisions perhaps but were here the individual employee was reasonably relying or at least there's a sufficient dispute the fact on that on a rd party the law doesn't require everybody who touches anything along the way the payroll to independently conduct a full blown review this court has said that wilfulness as a matter of law can be found when the employer takes no affirmative action will hear the employer did take some affirmative action and set up a system  two knowledgeable cohen ploy or is reviewing every payroll and making the determination and our single employee who had any knowledge about that understood and relied on them submitted each payroll for them for approval and each payroll up the payroll sent it to the other employer who said don't pay them overtime no sir your honor if you look at the record actually sometimes employees did get over time sometimes they didn't understand understand but was a was a reasoned decision exception that could ever apply to these employees so we're not dealing with a situation where as a matter of law there could never be an exception that applied to any of these people and so you're not confronted with that situation so your employee never inquires in this case is there some particular exception is there a reason why this person to work more than forty hours this week shouldn't get overtime but the reason this employee relies entirely on the employer who's going to obvious self interest say don't pay overtime to these employees well i