banking and if they took away the fact that people who don't go out of town get the same thing if you change those two is your answer is still the same if the facts were changed such that being currents of the expens have we had a system where it was only for out of towners and we didn't have the banking but you know the company takes into account that we send you out of town for three days work but you actually stay out of town for five because you're going to go you know to disneyland while you're out of town they don't get to make an adjustment for that that would make it wages rather than you know an effort to identify the no work related expenses well let's be clear what man does here you know while they tap the total amount of the ferdi ems that the federal conus rates does not simply pay that amount for each day that the clinicians are away from home nor do they adjust the amount of the forty dollars ems to reflect that change in the amount of expenses incurred for a change in the number of days away from home it's soley based on the quantity of work performed so when an adjustment is made it is made because hours were not work not because it spends as we're not think cur a law is clear where the measuring unit used to calculate the perdiem if the number of hours work as opposed to the amount of expenses incurred the per d m s function to supplement wages not to reimburse expenses ok if it's tied to the amount of time away from home and that's not a problem but if it's tied to the amount of work performed that is a problem it was clear on that and let me just say that you know this gets into the reason why i am and claims to be rather plaintiff challenge the threshold issue of whether the forgives are payment for expenses in the st place so in essence a man seeks an advisory opinion that it had to do what it did because if it had not it would have violated  so if a nurse was working in california and they live in pennsylvania and they contract coded and they can't go to work the policy would apply and a per diem adjustment would be made even though the nurse or the clinician cannot fly back home assignments without regard to whether the assignment requires travel away from home and indifferent to whether the clinician incurs any expenses i mean we're not saying that clinicians who travel away from home do not incur expenses oftentimes they do the is there anything in this record in that comparison i don't think there is but i do think that's even stronger fact is that maybe in one of the other cases that i'm aware of did the company actually pay their premiums to employees who the non traveling clinicians get you know in wages the wage rate is much higher because we classifies the pretty and as a wage so the wage rate necessarily is much higher one hundred percent of it is considered to be a wage whereas when they're traveling more than fifty miles they deem them hard to be a for d m a an expense reimbursement and then the wage rate is the other half which is a lot and you know does not simply pay the amount of the federal conus rates what it does is it nor does it just the amount of the for dams to reflect the change in the amount of expenses incurred in the number of days away from home it's that it makes the adjustments solely based on the quantity of work for four for all clinicians on all assignments the per d m is based exclusively on and varies soley with the number of hours worked well first of all  demonstrated how much in a given week you're actually working the wire i agree what i want to clarify is i don't think that i think the argument is that it's capped is that they don't pay more on any particular calculation of the regular rate reasonable payments for expenses incurred in furtherance of the employer's interests and properly reimbursable by the employer that's exactly what i am and does with respect to the challenge proteomics here i'd like to use my time this morning to cases so didn't deal with the incurred in furtherance of the employer's interest portion st of all but fundamentally in both of those cases it was the defendant employer who said that it was the fact that those payments were not paid on an hourly basis meant that they were not wages and they should be excluded from the regular rate the court rejected those arguments and said no it's the character of the payments that matter here in both cases those were wages in both cases those were taxable in our case it's the appellant to make the technical argument that some reductive calculation should be determin feature and the fact that it's also paid to everyone regardless of whether they go out of town don't those two features that it's divorced from any notion of expenses incurred allows for a reasonable payment for expenses incurred and a man has permitted that banking it's it is part of the reasonable estimate this is now this class to be clear consists of approximately eleven thousand travelling clinicians it does not include anyone who is working a so called local assignment the those and those clinicians the people working local make up a very very small minority court recognised circuit recognised and bouch purtier was could be either included or excluded from the regular rate and each circumstance words individualized factual assessment that's why the th circuit seems to divorce of the banking goes by how much you work to get credits or not and if the so the connection to expensing kerman she was broken by those features well your honor we have not seen in this record any example of how that banking operates on an individual basis and both plaintiffs here testified they used the  overall record with regard to showing up for work well your honor there's st of all i think factually someone would have to work an entire shift to get the credit of that shift to offset  how the question under that circumstance is whether whether it's reasonable for someone to incur an expense in advance effectively and behalf of the company  to use the language of the court in florida and local two for six it is not functioning such that per people can work more hours in a day and receive more pretty i'm and thus it's it doesn't function like a wage  one they are entitled to an offset or they were during the class period more fundamentally though there's no dispute that these pretty people use the conus reimbursement to cover their expenses during their assignments that they were reasonable and that a that when the only reason when people sorry answer just want to add just one thing briefly which is that when when  work that is correct but i would suggest your honor that there are again there's a leaven one thousand people in this class whether somebody goes doesn't go to work because they go to the beach or whether they go work for a competitor for that for a day which is said that they are incurring expenses on a man's business when they're working their assignments i see your honor that i am over time so on and off the court as further questions i will conclude thank you important not just to the parties not just important to travelling nurses or clinicians not just important to staffing firms that are represented by american sapien association but it's actually important to every employer who has police who travel away from home to perform services and for that reason i think it's critical that there be a consistent treatment between the tax consequences and the labor consequences and that's what congress has intended if you look at they internal read if you look at the internal revenue code and the fair labor standards act it becomes clear that congress intended that these two provisions be consonant or be treated the same so if you work three days you get to have seven days it would be an expenses if you work two days then it's harder to justify that the whole week is for the employer's benefit and so therefore the way i understand the proportionate is paid to an employee and the employee is not at work for the employer on that day for the benefit of the employer then the even must return when you're traveling to and from work when you are having to stay at work because the employer is asking you to stay at work than those count as being at work on behalf of the employer when you are supposed to be working on a particular day and you choose not to work you are not there for any of those reasons not because the employer has asked you to work not because you're traveling not because you're there because it's expensive to stay there and then come home  i think it's important to focus on two things this is what this case is not about plaintiffs had never argued and as plaintiffs counsel indicated there's no evidence that the nurses are not paid it reasonable salary in addition to their pretty ems and their overtime rates there's nothing in the record to indicate that that's not that they're not paid a reasonable salary number one and the cases that that have decided that these kinds of plans  yes it's your honor it is a factor i understand that it's a factor and it is a factor that may be specific to this case and not any other case so i i'd like the court to focus on the fact that they are paid a reasonable salary contend otherwise number two plaintiffs have conceded that these are these projections are for the approximate expenses that the employees will incur while they're traveling they've conceded that in the in the separate statement so whatsoever miss clark had an adjustment because of a family emergency she went home she left the work assignment in the middle of the week and went home and she incurred an adjustment to her  let me focus on what i'm what i'm going to be asking the court to do i'm asking the court to apply a consistent rule that the employers can know what to do so sometimes if you look at the bausch case for example sometimes the income tax benefits are more valuable to the employees than the increase in the regular rate some time some employees get a better have do better with an increase in the regular rate and some employees do better with the tax benefits in the end the employers need to know what the rule is and that that rule will be applied consistently across the board to tax and employment you can't have that it's not taxable for tax and at the same time that somehow it's an it's taxable income included in the regular rate for employees so for that reason i would ask the court to hold that where the employees are paid a reasonable rate they receive cite too and we're not aware of any tax rule that requires for a d m s to be tied to hours worked nor have they pointed to any authority and where again not aware of any that links the payments tax treatment to its inclusion in  from the regular rate as the th circuit explained in bausch tests are different and so the fact that a ruling in one will not negate a direct ruling in the other so i just want to clarify that some other issues that were raised i agree the banking of the hours in this case shows that as judge collins noted the the per d m z are completely divorced there's absolutely no connection between the currents of expenses and the payment of room with regard to were not challenging the reasonableness of the amount of expense yes that's true but we're challenging the method used to calculate the amount of the payment we're saying it's not a payment for expenses and then finally on the further inside the employer's interests prong again i don't think that's properly before the court but i will note that no authority supports ammons contention that the amount of work performed determines the nature of the expenses in fact the regulations make clear that expenses incurred while traveling on the employer's business are not personal expenses it is undisputed that the expenses and then contends are personal expenses are incurred while clinicians are travelling on assignments for a their travel does not cease to be an amants business simply because ammon is dissatisfied with the quantity or quality of their work so long as a man continues to employ the clinician on a travel assignment the clinician's expenses are incurred while travelling on a man's