we believe that the plaintiff's workers here and the fugitive class that they represent are exactly the kind of workers doing exactly the kind of job that the wage and hour laws were intended to protect these plaintiffs works twelve hour days six days a week standing on street corners essentially collecting leads for potential free cell phone customers that were part of a federal government program they started each day with a rally of sorts at the office and ended the day with a what's called the bell and gong ceremony which was we allege a cult like public for praise and shame ritual where the workers daily proceeds and results were reviewed these workers receive no base salary or benefits they receive ten dollars in reported and labeled as such commission not for every person that they collected information on but for every approved customer that is that the information that they collected on the street went to a third party that determine whether the person was eligible under the federal program to receive a free cell phone or your honour's this quite candidly translated to third world sweat shop pay from roughly fifty cents an hour to up to six dollars an hour and this is in new york city these workers stand in contrast to commission professional salespeople for example pharmaceutical pharmaceutical company detailing representatives who have a significant control over their schedules the way that they approach customers how they talk to customers how they cultivate customers where they get customers and so forth here in contrast workers had little control over how long they worked where they worked how they worked and the rules under which they worked year i was a different it is your honor and the difference is that the level of supervision the nature of what they were doing there indeed there is certain parallels which we c such as the fact that you're collecting information about potential customers and that those customers have to be approved but the nature of the workers here as i said was such that they were so tightly controlled by rules that were set by credi what the workers could do it was significant for example these workers were prohibited from going door to door and prohibited by credico from going door to door it's also important to note who impose the rules and who enforce the rules this court has said many times consistent with supreme court precedent that the power to hire and fire is crucial in determining the status of workers and whether they're covered by the federal laws here clearly credico had the power to fire and did exercise the power power to fire people for example for going door to door a normal salesman although might be dropped off on a street corner wouldn't be prohibited and i think that that's a distinction between the flood case you know from whence you dropped on the street corner you could have some discretion as to where you're going to go here it was very circumscribed it was basically kind of setting up a table on a on a street corner and that's where they they worked so furthermore we believe that the district court heard in not in looking at the facts some undisputed disputed in some or i should say some stipulated of course but that stipulations i think you can hear a lot about stipulations from my learned colleague but stipulations i hasten to add are not do not mean the absence of a different disputed mirrored material fact there are many many stipulations in this case but nonetheless there are significant material facts that remain are inappropriate for disposition at this stage indeed this court has said many times that these cases these cases both with regard to the control aspects of functional and actual control by the purported joint employer and the status of the worker as an exempt salesperson are highly factual analyses which are usually and we can test in this case in appropriate for disposition at a summary judgment phase i'd like to focus first on the joint employer aspect of this as i noted critical exercised a tremendous amount of control over the  plaintiffs they they must view this of course and as the circumstances of the entire activity viewed in the light of the economic reality we contest that the economic reality here your honor is your honour's is that credico essentially was perpetrating a pyramid scheme whereby these purported i s o s which stand for independent sales offices were nothing but nothing of the sort not independent we're not sail selling anything which i'll get to and we're really people who were recruited up through the ranks of people who participated in this as initially workers and then were like the defendant sue here was recruited by an agent of of credico who was able to where and did convince her to open up chromatics and this is how the the a joint employee understand the joint piece but i'm just a word in any way there is a paper trail if you will that shows them to be directed ways of credit they're not direct employees or credico we'll let we can see that but again if you look at some of the indicia of control shifting to that topic you can see that credico was very involved deeply involved in both the logistics and the rules regarding hiring or what they call on boarding set up these independent i s o s those i a so as in turn for example sent significant amounts of information both at the hiring process about the individual workers who were on board and in fact and this is important on a daily ceremonies the the information that came back to the i s o as from credico was sales information that was transmitted by the tablets that these individuals had again the tablets themselves were property of credico and owned and controlled by credico and they could be cut off by credico that information about the information was collected from potential customers on the street was transmitted to credico and then reports were generated called feet on the street reports which went back at the end of the day and that's how the managers then decided whether a worker would get a bell or a gong in front of his or her colleagues thank you mr hans please the court my name is jason schwartz with the kids and law firm and i'm here with my partners credit williams and mary beth maloney i'd like to start judge droney where you were which is the flood case i think the flood case and also the supreme court's decision and see no are directly controlling here on the question of the outside sales exemption which is dispositive of the entire case so let me address that first and then i'll address the joint employment with respect to outside sales the supreme court in encino has instructed that we're no longer to look at the exemptions in a narrow way in accordance with the broader remedial purpose of the statute but rather they mean what they say of the outside sales exemption in the statute section thirteen a one says that outside sales people are exempt as defined into limited by the secretary of labor so it's a broad grant of authority the secretary in turn has defined the outside sales exemption to have two and only two criteria importantly those criteria have nothing to do with pay in fact there is no minimum pay for an outside sales person their criteria are as follows number one that the primary duty is either sales or obtaining orders for services and number two that their primary duty duty be performed customer really and regularly outside of a regular place of business if i could your honor your honour's let me just read you what i think is the dispositive sentence in the plaintiff's brief which reflects the undisputed material facts below and stipulations below page thirty three of the opening brief quote the economic reality is that appellant's were selling phone subscriptions on the street the first part of that sentence is the first factor they were selling phone subscriptions that was their primary duty the second part of that sentence is dispositive on the second factor on the street they performed it custom early  regularly away from their employers place of business period full stop that is the end of the outside sales exemption all of the rest of what you heard about does not go to the definition that has as this court put it in flood the force and effect of law flood then deals with a job that is remarkably similar to this one of the only distinction i think i heard my colleague point to was that in flood the salesperson traveled door to door like willie won't loman if you will our salespeople travel down the block the reason they don't travel door to door has nothing to do with the outside sales to statutory or to regulatory factors but in any event the reason is because the federal lifeline points to be terminated there's at least ten bullet points that seems like supervision to me why am i wrong about that you're not wrong to an extent your honor first of all what i would say is that is an extra statutory factor that is flawed explained only goes to an analytically distinct question and that is whether your primary do is sales or something else that's not a question here the primary duty clearly is sales but even if you consider it like the court did in flood in flood it was as you pointed out judge tony exactly the same uniform script supervision all of that here is exactly the same and the cases are repeated in many that we've cited including jacobson and others ascii where edition all requirements either is a result of quality assurance or regulatory compliance and here we've got both right the requirements roll down from the contract with the customer sprint and from the federal life line regulations quality assurance and compliance with regulations those do not turn the job into a nonexempt job it's also a little bit of apples and oranges that really goes mostly to the join employment question not to this outside sales question but floyd is is directly on point answers the exact same question in virtually identical circumstances your honor and finds that the individuals are outside sales people so i think there's really no debate about that and with this court's decision in flood and the supreme court's decision in encino there's really no room for any other outcome on that question what would be needed a year in order for it to be determined that they were the joint employees if you're sure so moving them to the joint employment question so that the exemption the outside sales i think is this positive for the entire case you don't even have to get out join a plan b if you did get to join employment what's notable here is the key factors the quarter factors clearly weigh heavily in our favor the reply brief from the appellant's doesn't even mention the quarter factor is literally not a word about the carter factors in addition to the quarter factors this court was clear in saying that there are additional functional control factors that ought to be looked at for the totality of the circumstances here the district court did a very thorough analysis of both the carter factors and functional control factors finds that many of them point in our favor meaning there is no joint employment we don't stand in relation of an employer and employee others are inconclusive and a couple point in favor of the employment relationship but not sufficient to defeat summary judgment as this court pointed out in saying the only thing i've heard from my colleague about why the district court was wrong is that the tablet somehow affects th situation so let me address it but i want to step back for just a second to the whole relation these people did not know a single person at credit they had no contact with credit cards they were hired by chromatics they never visited credit co's office they didn't even know where it was they were assigned to their work locations by chromatics and by the way it wasn't that specific of a work location right all credit did was assign chromatics a territory consistent with its contract with sprint because other people have different territories within that territory a wide segment of new york city then chromatics is the one who assigned them their work locations but even they are exhibit ninety one in the in the trial record that we discussed at that hearing and is in the  as well shows the assignment was like staten island coney island or a street name it's not a specific address there's lots of room to go around so there is no control over the day to day working conditions by credico and then the best that the that the appellant's can do is they say well credit kohl gave them the tablet the i pad your honour's i'd venture to say probably some if not all of you have an i pad it does not control the way you perform your job in this case it's even less than that right it's a form it's like we gave them a you know an old time form with carbon paper in between it and the reason there needs to be a ford is because this is a federally regulated program where people have to qualify in order to get the virtual federal voucher to buy the phone in the phone service so you fill out this form it happens to be on the tablet my colleague is right it goes to a third party who has to approve it not because they're exercising any discretion over the sale that sale is made they just have to confirm that the federal regulations are satisfied that this person qualifies for the electric the virtual voucher to purchase the phone service so this is all stipulated in the record solex the third party looks at the information that came from that electronic form and says yes they qualify or no they don't because the incomes to hire because there's already a cellphone assigned to that household that's it the sale is made on the street they're not promoting sales for somebody else they're not you know doing ground work collecting a list of prospects or leads as i heard my friend say they are making the sale there is no other person who makes the transaction after they touch the customer it's a contingent sale it is just like it was in flood and in fact in flood your honor there was more contingency because the company as an exercise of business judgment could reject the sale and the court said that's fine here it's even easier stipulated facts provide consistent federal regulations sprint has to accept the customer if they meet the federal regulatory criteria there's no discretion they can't say we don't want that customer so that tablet provided by credico that harbin paper form if you will does nothing to create a joint employment relationship between credico and the employees of chromatics the stipulated facts further provide your honor that tablet itself is provided on consignment meaning that chromic says rick sponsible financially you know if it crashes on the ground or what have you so it's not even really providing the equipment contrast that with all the cases cited by the appellants with equipment and premises right a sewing machine that contains the pattern that dictates the work a hospital where you're working on their premises sharing their equipment and saying by the way uses the term sharing or the rather for case where this all comes from where you're working in the meat plant under their supervision using their equipment this is nothing like that thank you your  briefly your honour's well that's interesting if the sale is made on the street the moment that the worker collects the information and off it goes to the third party via the tablet they're not getting paid for that they're getting paid only if the sale is approved but we contend that the that is it is apart from language that may be in the brief that is not the evidence in the record the evidence in the record is that for example thomas smith the one i mentioned who got defendant you into this business and was had a title with credico and therefore was an agent we allege of credit coco told plain to vast oh that we don't sell anything and that we  no sales skills in what we do we have a thirty second spot spiel that anyone can do that's in sum and substance what he said that stands in contrast to flood where the plaintiff specifically admitted that he used his skill to make sales that's a significant distinction to add to the ones that i mentioned before your honor's lastly the tablet the tablet we contend is not simply a tablet like any one of us might use which is adjunct to our office  profession they cannot and counsel has just conceded that they cannot the workers cannot do anything without the tablet being activated and credico had any use the power for workers that they either believe correctly or incorrectly had violated some rule like going door to door or not being in the specific place that they were assigned they would turn the tablet off that worker cannot send a fax there is no carbon paper there is no form to fill out and send any other way that your honors we contend is their virtual office so the idea that a they're conducting sales is highly questionable certainly there are differences of material facts and it is by no means conceded that they are conducting sales and secondly we would contend that there is could significant difference of material fact whether they are in some in substance outside of an office because the moment that tablet gets cut off there is no work place thank you mr thank you both thank your honour's for decision