address the correspondence about the for like a matter that we have done a fide so that it's clear precisely why we drew attention to for like and how we think it might offer some additional guidance here what our position is on that case first of all this case presents two widely divergent positions ours is that california has strict liability requirements for wages hours and working conditions that governed both meal periods and the payment of minimum wages the defendant has responded predominantly by arguing that there are a number of exceptions to the strict liability requirements that include the intent behind the employer's actions the intent behind the employee's actions that substantial compliance is good enough compliance all of these are factors that are inconsistent with a strict liability provision in for a lucky the issue that has been accepted by the california supreme court pertains first and foremost to the to the minimum wage claim that exists in our case which has been ignored at all stages the district court defendants respondent on appeal have overlooked the minimum wage claim at all times but in for a lack in the question was if employees had the discretion to bring a bag with them to work or not would the employer be subjected to a minimum wage payment obligation if the employer chose to take control of the employee and search them when they brought the back the question is going to be answered is does that voluntary decision by the employee trigger nevertheless the obligation to pay a minimum wage hike out the question was whether or not it was voluntary as a matter of law or not well the the question is whether the the the action of the employee in voluntarily bringing the bag can create the wage payment obligation when the employer then searches the employee and prior to for like him our answer would be absolutely a can because california has a  e test for when time is compensable is different than federal law and under california law it's either if the employer suffers or permits or if the employer controls the employee under any circumstances imposes control of that control test isn't plot is applied so strictly didn't mendiola the california supreme court said unlike federal law if an employee is sleeping on premises they have to be paid sleeping time to be excluded for compensation but not under california law california is legislature has made a policy choice to impose a strict liability standard on compensation in these people have a choice right is we will give you half price food but if you accept half price food you must eat it on premise that says that to make sure that it's being consumed and they're not stealing well that you bring their lunch what happens if they if they bring their lunch the employees can leave for thirty minutes and receive what california law requires which is a thirty minute meal period entirely free of any control by the employer so your position is that they ought to be able  to take the half the half price food and leave the premises for thirty minutes of totally uncontrolled time which is the absolute standard and augustus versus  m the california supreme court repeated that any imposition of control whatsoever during a meal or rest break is a violation of the free of all control standard that's applied t under brinker the california supreme court decision was a component that the tone was just cause we just control doesn't necessarily require force in brinker the california supreme court said an employer can't even incentivize a waiver of a meal period or a respirator but and by offering discounted food but this seems how are they incentiv employee to be controlled by the employer they're incentivizing by offering a minimum wage or very close to minimum wage worker half price food but this is not free it is not free but it not free right it is how if for a minimum wage worker you have two options you can bring your meal from home which is essentially free it's food that you've already purchased from home or you pay back to your employer fifty percent of the value of  know how is free verses basically taking some of your wages and paying them back to your employer incentivizing you as the employee to remain in the control of the employer for your thirty minute meal break i reject the premise that you're starting with your question that the food brought by an employee is free an employee has to purchase the food that they consume somewhere whether it's at the grocery store or at their place of employment one there at taco bell and to talk about which already has fairly low cost food as a fast food type of restaurant offers that food at half price this becomes an extremely attractive offer when you compare that to the time required to prepare your own food that you purchase with your wages in a store so the issue that is that you are being encouraged sacrifice your right to a free meal period and relinquish your right to be free of all control but tell me how so if you're paying two fifty for a meal say right because  rodriguez says that many times at sometimes it was she was purchasing a five dollar meal so that would be two fifty right for a meal and if you made peanut butter and jelly sandwich in britain ample from home of that would be less than paying to fifty back to tackle bell you could you could potentially come up with a male that you prepare at home that is slightly less than the discounted meal in the record mr rodriguez testified that she often spent around three dollars  for some food so we're talking about a dollar fifty so you're talking about it now price saying that is roughly analogous to the cost of any reasonable food that one could prepare plus you have the opportunity cost of preparation time that you encourage home so it's not simply a dollars to dollars by giving this discount you're offering incentives and california was paid women which i mean let's say you've got a company that the software computer games and they have terminals and they say you know any time you're not working you can play the  my question yes answer is no the answer in your scenario would be with no other facts no i don't think that would generate an obligation to compensate what i mean it's a valuable service  accept the terms of the offer well you're you can't take the terminal with you you know you know it's sort of bolted to the wall and you know if you want to use the service or you know whatever  that you can do it in your lunch time you can do you break you can do it have to work presumably can't do it while you are working because you are working well i would return to the standard articulated by the california supreme court which says  the control here that you're talking about is not that they are working that they're serving customers it's what that they are they are they have to sit in the restaurant half price food they're restricted to the interior of the restaurant when when the meal period requirement under california law requires that they be allowed to leave for the entire thirty minutes and  but there's nothing that is requiring the employee to take that offer of discounted food and so you know and if you use an example that isn't even and i wouldn't call judge kozinski example extreme but something that happens all the time what if the employer has a break room with a couch and nice couch you can't sleep outside can't carry the couch outside you are staying on the premises garage you are staying on the premises but in this instance you're not working when you're staying in a break room but is not whether you are performing a task under california law that triggers the obligation to compensate minimum wage payments it is that she is under control of the employer which says you must sit here you must sit here explain the policy to me but just maybe i don't understand this does she have to say what is the policy that she has to eat the food in the restaurant she has to consume the food inside the restaurants you have to stay in the restaurant for thirty minutes she doesn't have to stay in for thirty minutes well but she do a full thirty minute meal period outside of employer can the less she finishes the food she could do whatever she wants she could for the portion of the time but she wouldn't be receiving the full break that she's entitled to under california law and she would not be receiving minimum wage payment for the portion of that time that she is under the control of the employer would also as an unwavering bowl requirement but even though she accepts the agreement to take the food california law requires payment while you're under their control b council she the policies attackable has are that she can't eat by the kitchen she can't eat by the cash register and during you know the ten minutes that she's eating her lunch she's not being asked or could be asked to do anything in terms of duties isn't that correct if the fact that she is sitting in a place directed by the employer to eat that food means they have imposed a measure of control it is not how is it different than a breakroom right if you you can't take the break room outside right so your employer is essentially saying to you if you want to use a break room you have got to stay here do you separate room they're not movable objects you can't lift the couch and take it outside but the meal is movable it can be carried outside how is that different than this policy because under this policy food that she could in any other circumstance of she bought it from the restaurant next door brought it from home she could walk outside or down the block and sit on a park bench to eat this food she cannot so the employer gives it has has a financial advantage in it pricing and it has the employer right there in a store that is staffed at the minimum possible level and so the employees who are eating the food are sitting right there in case they rush it in the employer wants to invite them back or or call them back where in the record is that where she has ever been called back or interrupted during her meal period i don't do not believe there is anything in the record to say she was interrupted but she was clearly placed under control she was told by her manager you must stay here and she followed that instruction i'm sorry i was told that she wasn't this was completely voluntary right i disagree that  volitional act by the employer subjecting them to control of the employer still compensable time so that is where why we focused on for luck and because the minimum wage portion of the appeal would get a a more directly analogous answer probably from the the for election appeal once the california supreme court addresses that on the minimum wage side thank you and would hear from the sun good morning may it please the court my name is nora style scene i represent appellee taco bell court taco bell controlled its discount not ms rodriguez the undisputed establish that rodriguez's purchase of discounted menu items during her off duty period was a genuine voluntary choice that she made after talk about relieved her of all duty to curb abuse of the policy essentially to prevent theft the the thrust of the policy the spirit of the discount is for employees not for their friends or family so to ensure that a reasonable amount of food is purchased talk about all i asked while required the employee who voluntarily purchased discounted menu items to eat that discounted food on come assess and then was otherwise released and free to go so the so th at the employee is required to if the employee chooses to purchase the food at half price the employee has to eat the food on the premises but the employed doesn't have to stay on the premises for the full thirty minute break theory correct and the employee is also free to purchase the just kind of menu items before the shift begins after the shift ends by the policy ms rodriguez test of while she admitted that she purchased discounted menu items during her paid rest breaks and she could also control when in her meal period she would choose to purchase just kind of menu items for example she was free to leave talk about relinquish control she could talk on the phone with her family she could run some errands and then return to the restaurant with ten minutes left in her meal period purchase just kind of menu items even in the restaurant and get back to work to prioritize and use my time efficiently i would like to address some arguments that are not in our briefing as for this apple case that appellant has brought to the court's attention in that case  it's a case about bag checks where employees voluntarily brought bags to work and then apple required those bags to be checked before they could exit the store no stay is warranted because the california supreme court's answer to the certified question will not assist the court here in evaluating the district court's decision the facts here are undisputed that the taco bell menu discounted menu items purchasing them was voluntary i refer the court to page thirteen of the order certifying the question to the california supreme court in which the court emphasized that they were  uncertain as to whether bringing a bag to work is truly a genuine choice or whether it's actually in a loser a choice that is the cap the law if i understand it the law of california is that if it's a voluntary decision you're not compensated but if it isn't you are in the if you can either ride the bus or not ride the bus it's voluntary but the question because bags people almost everybody carry some kind of bag  something that the with whether it's really a voluntary choice to bring a bag is that the within the meaning of california law is that what was certified correct that's that's why the question was certified to the california supreme court that's why the guidance needed the apple employees have to have not just their bags checked but also their cellphone to confirm that it's an apple product of their own purchased saying here it is well established in the record that mr rodriguez could clarifying what it means to be voluntary in the specific facts of the sort of fide class in the apple case here there's no doubt it is undisputed that the purchases made by ms rodriguez were truly an you can leave your bag at home but the question before the california supreme court is whether in the context of modern life where everyone really has a cell phone and brings personal items to work yes they bring them to work for their personal convenience but is that somewhere on the spectrum between a genuine choice and in a loser a choice here the choice is genuine the purchase of just kind of menu items there's really no debate as to whether there is no debate as to whether or not the employees may use or not use the discount as for and council vote yes the record answering doesn't the record reflect instances where mr yes if the employer were to say if you stick around for the for the raffle and continue clearing the tables that would be it would still have to be compensated well correct yes because so just to make sure i understand the hypothetical if there's a raffle for a large prize during the employees off duty time the employee may choose to participate in that raffle or not if that employee then participates in the raffle and is given an instruction to perform work duties to be available to perform work duties i did then then yes that would be  around and participate in the raffle you may win ten thousand dollars is that more voluntary or less voluntary or not voluntary at all as compared to the question that certified in the case thinking of eric thank you for that clarification your honor yes the raffle during a break would be more voluntary it would be a genuine choice i don't think there's really any doubt for that because there's no condition precedent that would require that employees or and really incentivize that employee to stay other than perhaps a windfall of funds the bag and the  isn't our position your honor is that the answer to that sort of fine question doesn't that guidance isn't needed to affirm the district court here the district court well of course if we want to go for this re voluntary within the meaning of our law because it was teed up to the court because everybody because it's not really a choice to carry a bag this is done only that wouldn't have an effect  counsel if she if mrs rodriguez were to purchase a full price meal there were no limitations at all correct correct she was treated just as any other customer she was free too  she could of her meal in the restaurant outside of the restaurant whatever she wanted to do if it was a full purchase crack to go through a drive through all none of the employee discount sort of triggers would occur because she was paying just like any other full paying customer i want to briefly address a few of the arguments made by counsel for appellant there is no strict liability in california regarding meal periods brinker is the law of the land regarding the employer's obligations under the labor code to provide a thirty minute off duty meal period to relinquish control to relieve the employee of all duties and not to incentivize or discourage breaks there's nothing in the record that news rodriguez was expected to be available or expected to be vigilant or to be responsive to requests to return to work while she was eating her just kind of menu items there is no evidence in the record that the restaurant was understaffed or did not have sufficient staffing to allow employees to enjoy this kind of menu items comfortably and uninterrupted in the dining area of the restaurant also as the court has already pointed out the issue of control is one that if an employee is subject t employer's control it means there is a lack of choice the more really in cases where the workers were on a bus that was transporting them to the fields that was required they didn't have a choice if they use their personal vehicles to arrive to the field they were disciplined verbal and could even be sent home for the day again it is under speeded in the record before the court that the purchases here were completely voluntary as for  the unfounded speculation regarding incentive and whether ms rodriguez was incentivized to purchase the discounted many items because of her wages or otherwise again that is unsupported by the evidence in the record and before the court this is a case about ms rodriguez who voluntarily purchased many items or not on her shift subject to her personal decisions i think the court for the time and we ask that you affirm the district court's decision in its entirety thank you thank you for your time for one minute your honor i just want to point out that the  question the district judge ellis asked regarding the difference in treatment between a full price and a half price meal actually highlights the fact that under brinker this is a violation on the meal period claim here if you were treated differently if you purchased a full price meal and can take it or leave the restaurant then using the plain meaning of the word incentive which is prohibited by the california supreme court and brinker it seems to me that the half price meal is in fact effectuating the very incentive that california has said is forbidden as a means of obtaining a relinquishment of the full meal period so when when you have the ability to compare the side by side you've demonstrated the incentive in the record actually shows that ms rodrigues took one meal a month roughly right from home and the rest of the lies the restaurants so on  summary judgment motion that should be sufficient evidence to allow the trier of fact to decide the question of whether there was voluntariness whether there was choice or whether there was an incentive to forego their thank you yes thank you thank you