argument that employees are are incentivized to go slow is directly contrary to what the legislature and the state has said that we are duty bound to construe all of those in favor of employees i'm familiar with the vance case and i'm thankful that i'm in california because as familiar and as reasonable as the filson might sound california has made numerous proclamations that we do not follow the port act we don't follow the every opportunity the california supreme court gets it reaffirms its commitment to interpret all laws to provide the maximum protection to employees in other words unlike in vans the california supreme court has made an express affirmative departure from the mendiola says we declined to import any federal standard which expressly eliminates substantial protection to employees in rilya and further rejecting royal's contention we conclude the federal statute scheme which differ substantially from the state scheme should be given no d again a million the labor code in the wage orders do not contain express exemption for travel time similar to that of the portal portal act we do not agree with the court of appeal that the thrust of the federal and state statutory schemes are similar c reacted immediately to protect the employees by inserting that definition or under the control of as two hours worked two five fifty four is well settled that federal law does not preempt state law in which in our law and therefore state law is controlling to the extent it is more protective of workers than federal law so to that extent i would invite the court to consider this a departure from vance as i have mentioned the wage in our allies in california are to be construed so as to promote employee protection mendiola and augustus be a b m security services in twenty sixteen time and again we have considered the purpose of construing the labor and the wage orders as the protection of employees so what is california law it's pretty clear the definition of hours worked is expanded by rather than limited to the california under california law it is only necessary that the worker be subject to the control of the employer in order to be entitled to compensation disputed that they were not allowed to leave until they passed the security search you don't have to be working in california to get compensated in mendiola sleep time is compensable on call hours are compensable in california it's been settled now that home health care workers who are there sleeping and not allowed to leave the client's house during the night those eight hours are compensable because they're restrained from leaving in mendiola the security workers were sleeping in the trailer on the premises all of that sleep time is compensable because they were not allowed to leave hours worked is any time the employee is subject to the control of an employer it's an independent factor call time is hours worth sleep time is hours worked and also if the court isn't familiar with this in california law breaks and rest periods have to be completely duty free and if they're not the employer has to pay the employee an hour of compensation at their regular rate and just recently we figured out that airport workers go in on their rest breaks if they carry their radios with them and they're not allowed to turn off their radio during their rest break that's a compensable event they get an extra hour of compensation for a rest break that's not compliant with with the duty free concept so california is all about either your duty free on your breaks or if you're under the control of the employer and you can't leave that is compensable and that's why we feel like the time that these people are not allowed to leave is compensable under california law we feel that's very clear and we feel like the district court in relying on the apple decision which looks like it's on life support in california really took a left turn when it started talking about what constitutes work this which just passive that's a total portal to portal concept which california has rejected every single time it comes up with practical questions so here we are in the midwest in this case is going to turn our trip of california and we have a situation where the ninth circuit court of appeals sort of fired at least one of the important questions in this case to the supreme court in california and that court has taken the question what's your view as to whether we should wait for the california supreme court to clarify this question when we first filed this appeal we also filed a motion to stay this appeal and tell the apple question and the starbucks question were decided and and this court to kind of do so and in our opening brief and our reply brief i again reiterate our request to have the california supreme court decide this issue it wants to decide this issue it's taken up the demand of this issue it's taken up the security searches it wants this the ninth circuit didn't want it they said we're not sure we're deciding this right they took a step back from window which has been on the books for three decades now which is to have been diminished test and and there are wait a minute that sounds like a lot of fills a lot of us maybe we should take a step back and say i'm not sure we got that right california supreme court why don't you let us know if that's really the long california and so i would invite the court to consider whether it should either defer ruling on this or we also made a motion to certify this question to the california supreme court and however it gets a damages question that's how much time was spent it's not whether this time is compensable in the first place or not it's liability versus damages and their oh it's such a small time spent that's de minimus and we don't know if that's the long california it's really important to know that no california public decision has ever applied to minimize test and their defense hinges almost exclusively on demand amiss and this is not to for the personal convenience of the employees factor that the apple case has this is mandatory everyone's going through whether they like it or not so for from that perspective if that's the exact question the apple court is deciding it will it may answer the question or it may not depending on where they going to talk about personal convenience or not two questions in this case to be fair that's the first one the second one is it's different because the claim of the pla this case that the markers are not secure that's the second question but the first question has to be answered to get to the second question is the california supreme court decision still going to be a fundamental the term or in this case that every single issue but of the first big issue i think it will be broader than the question that was actually presented i think the california supreme court wants to make a ruling on all of all of these security search cases whether it's for the personal convenience of the employee or whether it's not i i think that decision may very well answer this case i would like to mention to the court that i have notes from the starbucks oral argument which occurred on may first a couple of impressions were they were skeptical that the employer could not record the post luminary time they said if the time can be recorded it should be paid if it can't be recorded it should be estimated and paid the chief just mentioned that wage orders require payment for all time worked which casts doubt on the de minimus defense and anything richard rosen but on behalf of amazon we've heard and read a lot about what california does differently than the federal law but you haven't seen a dispute that we recognize and acknowledge that california does things differently than the federal law the question in this case is whether those differences are dispositive but with the outcome of this case practical question as far as the california  know your position would be the cases are not factually analogous is your view right with two things the cases aren't factually analogous and the question really that is if this the california supreme court is very different question the issue before your honor well the courts related in other words your position would be the court in california could come down on the side of the plaintiff in the second case and you could still win in this court that that's your first position because the not only do i think we could win i think we should win a gold that my point simply is that there will be an impact from the decision from the california supreme court on this case it may not end the case but it's the first question the threshold question this court would have to answer well with all respect not quite because the issue that was certified to the california supreme supreme court really isn't the question of whether employee choice matters because you have the if you read the ninth circuit certification order it says the concern that they have and what they were asking the california supreme court to adjudicate was in the situation that was there presented where there's no food no doubt that technically employees in a take at least half of this case and this of it in your client's favor if they will make the reason i'm hesitant to say that because i don't think the issue in this in california is whether employee choice matters that's a settled  would come across a blanket statement under no circumstances if this type of crime compensable their way that's my part and if and if they say that what they're going to say in california is not that employee choice doesn't matter what they're going to say in california is potentially that in the apple retail setting where there's no lockers no court room that the truce that was presented was a loser as the ninth circuit suggested where on the spectrum between willian and overton does that case said we get to that issue we're not sure how they're going to answer that we don't we don't know but what we do know here is that there was a choice there's no dispute about the trees and the plaintiffs are tempting to and they've always attempted to blur this despite the fact that we have a summary judgment record that beat that demonstrates that there are the express lanes versus the regularly that employees could decide to bring nothing on the warehouse floor because we accommodated them for their convenience to provide lockers outside so there's no doubt were using the express lane so they must have thought that the lockers were fine they were coming through with bags they were using this wrestling's because the lockers but maybe they were bringing anything to work with them at all and the people  worked at the amazon facility for whom there's testimony that she didn't think that she was comfortable using a locker the reality is we also presented statistical data that showed how fast people were getting out and the reality is they were using the express lanes and that's that's clear from the record she said she saw people using it and so whether it's because they were using the lockers or not they clearly had a choice as to what to do whereas in the retail environment think about it if you've been to an apple store you know there's no place there empty room where they'll be a lock you go when you open the door you're in the store so in order to have the anti theft protection they say they have to do the security check before the other thing that is being blurred here with the thing that's being suggestion that everybody went through a security check that's just not true please go to went through a litany of things that are compensable time under california when someone's on the employer's premises which she didn't identify and weaving never seen a case in state or federal court ever holding is that the mere act of walking out of a facility is compensable walking through metal detectors if you go through the not expressing of the regular lane in those pictures of this in the record what you're doing is you you're putting stuff on a ramp and you're going and if you have a bag you've got to get checked but if you don't have any of that you're going through the express lane you could be you could put some la different than the one that we walked in through today when we walked through today was accompanied by a bag check i had to put my materials on the the ramp and then they had to inspect them when you walk out if you look at the pictures in the record if you walk out there is none of that in fact the plaintiff testified she watched people walk unimpeded throughout just as if you are without a bag you walk through a metal detector and set it off right but there's no indication of that happening ok but the reality is if you set it off if you've made the decision to carry something like that where a belt or watch but you have metal in your we provide there if you look at the pictures that we provided in the record of summary judgment that were before judge hale there  signage up above the expired approach or point saying here's what not to wear here is not what the carry and if you make the decision and we even provide nylon belts so that people don't have to wear a metal belt to go through so that decision as to what you wear and the reality is tons of people do it without going through without setting off a metal detector that establishes that proves the point that that is an employee choice and if you look at california law that's what controls it's a real legitimate choice we went out of our way you see in the pictures in the record there are literally banks of lockers there are jackets hanging on hangers outside of the secure area and so what plaintiff is it is basically saying is we should get paid for time walking out t then if we if we make the decision to carry a bag were to carry as she did our keys we should get paid for then the person who read the signs and walked right out t unimpeded think about that there is not only for straight time for going through there isn't for time and a half for going through because it's now over time but it can't possibly be what the legislature intended to weary truces provided then we don't have to speculate here because the case was already told us what the legislature intended we take a categorical position that this type of screening is not what happened to employer who has a large shift change and has only one bag topper they are expensive as you know and the wind backs up and i'm not after minutes than one and i am absolutely not suggesting that you need to make a categorical determination nor did we ask judge hell to do that what we said is on the facts of this case that were developed through discovery depositions production of records production of data we don't have that case where there's a single anatomical we have two exits in each of the exit areas there to express lanes people could and and we agree that there are two prongs to the definition of what is work in california one is the controlled by the employer problem ok we acknowledge that that is and it takes me back to the prior argument that is an example where a state says we're going to do something different they didn't they didn't have to do that they couldn't do the analysis that we were arguing about the last case all they had to do was  here the reality is different from the fracking versus apple case is there's no doubt that there was pure unadulterated choice here which then takes us to the second prong which is the suffered  permitted to work problem and interestingly enough that is language that is derived word for word from the federal fair labor standards act and there is nothing to suggest that  california intended a difference between the federal interpretation of suffered and permitted to work and the state co opted term suffer the permitted to work  of the supreme court that one of the elements that has to be considered for something to be work is whether there's any executive activity there's a small exception to that and that is for people who were hired to engage in passive activity we are we are suggesting that under either prong the control by the employer problem and and by the way to the extent the plaintiff is suggesting that the employer employee choice doesn't matter under the first said was as you suffer permitted to work we don't care whether the employer was requiring to you to do it if you are working for the employer the employers pay you for it but only controlled by the employer pronk it's not modified by the whether or not required by the employer the negative implication of which is to be controlled by the employer needs to be required by the employer and here as the record is replete with evidence undisputed and not even really mentioned here today  material facts should have prevented this summary judgment from being granted i defend its own evidence shows that employees were waiting three to five minutes in lines and other disputed issue my client testified that she never heard of express lanes you keep talking about expressing express i express lane she never heard of it and that was in her deposition the choice thing is illusory we don't have any evidence as to how many people use the express lanes that alone would justify reversal of the order granting summary judgment the overton case that one you can drive your car to the disney parking lot and then you take the employer shuttle over to  but you could also if you wanted to get to work you could take a city bus you could have you could take a cab you could have your friend drop you off you could walk you could ride your bike there were a million different ways you could get to work you didn't have to take the employee bus so that way over ten is not relevant to this discussion we've already covered and the court knows that the security searches were mandatory for everyone whether there was an express lane or not they still had to wait and were restrained from leaving control is the only factor necessary for determining compensation as stated in meridian under california law it is only necessary that the worker be subject to the control of the employer in order to be entitled to compensation and then he brings up the filter factors again about passive activity exerted activity that kind of analysis is what the supreme  the augustus decision the court of appeal on the all on call radio rest break when the court of appeal said that although on call hours constitute hours worked remaining available to work is not the same as per forming work and the california supreme court reversed that saying no if you're not completely duty free that's a rest period violation you can't enter into that discussion of what is performing work when control is all that's required and the sefer permit standard the only thing that's required for that is knowledge of the employer that that that activity is occurring and the employer knows that activity is occurring because it required it so we respectfully submit that we survived the apple corps is deciding a bad check case the starbucks court has already had oral argument on the demand this case we the california supreme court wants to dispose of these issues they're the natural for them to decide those questions of state law and if the court would like to grant the motion to certify the question we would renew that motion thank you thank you