ways were direct support professionals for n c a a and they were charged by an seo with caring for people with severe disabilities who lived in their home rat cared for her her adult son and the shown ways cared a district court granted in c s motion for summary judgment and we asked this part to reverse the district court's decision is flawed because the district court resolves disputed facts and generally construed the evidence in the light least favorable to the rap in the show millions counsel before you get to that i think you know i want to just tell you what my problem is with your position which is there's a requirement by this employer that time is recorded and here we have no time that it's recorded and then twenty three years later you're seeking overtime isn't there a problem just right off the bat threshold problem that everett's dolt requests for overtime  do not work more than your scheduled hours without prior permission from your direct supervisor the company is not liable for hours of work without such authorization and the testimony from the employees was that the discussion within that they would only be paid for forty hours per week and that's all they could record that's what was considered work anything else was voluntary and that's essentially asking the employees to up front waive their rights under the  because you're not allowed to have more hours and back and we're going to find somebody else to do it or they could say well get somebody else to work the night shift is cheaper and we don't have to pay overtime but by waiting two or thirty two or three years later you can deprive the employer of the options that they had in terms of dealing with this particular request respectfully your honor the statute provides the employer with only the option to pay for all of the hour's work and as soon as in c m told them that they don't leave be paid am i wrong your honor on the rare occasion where they were courted more out there whether it's rare or not as i have is that factually accurate somewhat your honor however the testimony from the employees was she's and they filled them out and caved and occasionally they would fill out more than forty hours and then be paid for that by by time she review process seven i'm sure they wouldn't have been paid twenty force but the employer would have an option to know what their legal position would know what they're unable position might be and could decide whether to fire   yes sure however the employer demanded that two hundred and forty seven work the employees inform them that they were working that time the policy essentially told the employees that they would be paid for that time if they recorded it  with regard to the rare occasion were a few extra hours were added there were many times where that was not paid on time and a half basis there was simply no legal  that that the employee should bring the employer's attention your are there were that there was testimony where this was brought to the employer's attention on the last minute hat question the point you just meant they weren't paid for time and that was employees are charged with maintaining records and if the employer fails even if it's because of the employer's good faith effort then the employee has a relaxed burden of proof that i says that you could have a situation where three years two to three years later you come back and say well actually i never ordered these hours but you know me for i'm ten thousand dollars or twenty thousand dollars that you didn't pay me because i didn't see any cases like that and wh about it is creating a person signed up under the statute which is you can comment you keep your job you can work all those hours for a number of years and then you come back and demand exorbitant eight payment at the end if the employer knows nothing about your honor i disagree st the statute charges the employer with complying with the law i believe the andersen versus mt clemens pottery case from the u s supreme court dealt with time going back years and years where the employer had a good faith error about whether it was even covered by the law and whether the employees would have to be paid the incentive ver quire in the employee ease to know the law and to demand their legal rights under the law and use that language actually creates an incentive where employers simply won't need to comply with the law if an employer can avoid liability by saying we know we only told you that we would pay you for forty hours our policy says don't work beyond that and we are not liable nine for any work that you perform without authorization when you have employees repeatedly going to their supervisor begging for coverage so they can take vacations and do additional work and the response from the company is there is not money in the budget if you need somebody to come help you need to pay somebody to come help it is simply not the employee's responsibility to demand that the employer comply with the law the employer's job so if you apply with the law and know what the law is under the statute the law doesn't place the burden on the employee it places the burden on the employer and that the obama case demonstrates this were at trial one of the workers testified no one ever expected any kind of compensation these were people who were volunteering for sure like all organization i guess at this point we can all quote any reasonable agreement of the parties which takes into consideration all a part of facts will be accepted when the and when the employee resides with the employer or in this case the employee's  regulation the says that the language on cody's when the employee has complete freedom from on from all duties that he may leave the premises for purposes of his on that regulation would control here there's testimony that the employee has to be home by love than if they went out because they needed to care for josh nine and when linda wrapped testified that in c e o told her she'd have to pay someone to come in to help her christian if she could be there spreadsheet the spreadsheet was prepared by counsel it's not sworn it's not it's not fact that the employee said you know it didn't didn't happen and preparing it why even aside from the recording at the time they were employed why is the spreadsheet created by counsel sufficient to create a genuine history of material fact i'm a number of hours these employees work or the spreadsheet does very little other than just calculate the  that they weren't paid for less what the employees testified where they were they did leave because they had alternate coverage or or the individual is in somebody else's and their testimony creates the genuine issue of material services that are being provided by the appellants are part of a approved plan tear that is required under the medicaid reg medicaid being the source of funding or the services  absolutely correct that this situation is sort of a unique species unto itself where we have adults with the developmental disabilities mr collins and mr rap familial relationship with the palin's and miss wraps that christian is her biological son in the case the shumway joshua collins is the ward of karen mother who lives in florida in pursuit of providing services to the individuals with developmental disabilities the  the planning of the individual scare signed off on it and we're aware of what the program for starbucks is what's going on in this case really can be boiled down to the points on appeal are different iterations of the same issue the st is does living at home with a member of your family constitute work within the meaning of the f l s if the answer to that question that this court reaches is no the district court must be a farm the district or found that the balance of personal time spent in their personal homes with members of their family was not work with in the mating of the act and a regulations sided and discussed are controlling there we have searched high and low for case law that comes close to discussing this unique situation we were mostly unsuccessful however there is some guidance provided in the holloway case although it is more in terms of was the lack of proof that was presented as a summary judgement stage which is my next issue that i'll get to in just a moment but i believe notice to an employer that employees are working twenty four hours a day seven days a week three hundred and sixty five days a year and their with their family members these employees are given a great deal of latitude to perform the plan of care to work on the client's goals and objectives or the hours the statement about funding not being in the budget is a bit of an oversimplification these are free of fruit and based on the availability of medicaid dollars allocated for these individuals with developmental disabilit believe as judge loken pointed out there were instances where overtime was recorded and overtime was pay and there were allegations in the complaint to that effect that there were overtime hours work and recorde but improperly pay however the plaintiffs when facing summary judgment for all hours work off the clock are not reflected on the time sheets did not present any of that evidence to the district court that is not in the summary judgment record it is an issue that has been sort of lurking under the surface in this appeal and the st time it was raised was by the appellants in a footnote sort of near the end of their brief and as the court knows that is not the time or the place to raise that issue for the st time and it was not preserved below but that that is the responses there were instances where over time was recorded over time was paid and there is no evidence on the other hand that there was any notice to n c o that days employees were working around the clock so that while there were some instances where overtime was recorded and paid there was no notice whatsoever that these individuals would now come back and claim they are a spreadsheet that their attorneys have tabulated that they should be paid for every minute and i would say every waking minute but they want to get paid for sleeping to and added to the follow up on that so opposing counsel that you know a family member twenty four stabbed and that's what we think we can get paid so the the equivalent is absolutely right why is that not enough to provide some recap and i think you are getting that your honor i think that is a legal argument in conclusion that it is sort of as a great segue from issue one is sleeping in your bed at home or under the f l essay and then by the same token what proof was presented to the district court to establish a that work was done and b how much work was done there was no evidence of either of those things there was nothing presented to the district court in the summary judgment record that was  established that work was being done for the benefit of and c and b how much of that work was being done there was no testimony that on wednesday i worked with christian or josh from a spreadsheet they testified that they could not provide any testimony about how they were tabulated how they were fair and what even the spreadsheets had reflected in some cases  said not sane spreadsheets until the day before or the day of their deposition and that that sort of speculative and testimony conjecture is insufficient by itself to ward off a summary judgment that was well established and so i think the issue under the whole way is why it's controlled fair it i think as close as we can get under these unique facts  the employee in the holloway strata said was a technology technician of some sort who was on duty at home and would be called out to go to people's price  had and there's just no evidence that or remaining full explanation of the hours worked or what work was performed this is all language directly from hallway the testimony that guy was a they could provide no specific days or hours works or what the work was done on those days and there was also no account for that they claim they were on duty but they may not have done any actual for every minute of every day there is no account whatsoever for days where they perform let me ask you this is it your position  twenty nine c f r seventy five point two three does not apply because of the live at home aspect of this or rather that it applies but the ordinarily sentence pre employees can do they just don't have to leave home once their designated shift in they are free to do whatever it is they do in their daily lives it is not the business of in seo to delve it was and the the idea that the appellant's were ordered to stay until lavender some other time is not supported by the record that it's a miscarriage or zation of the deposition testimony  means by which these people could regard their extra time or their overtime your honor and that is not our position our position which is borne out by the record is that there was the procedure for recording over time and in fact it was recorded and paid in some instances however this under the medicaid requirements this plan of care is required to review prepared and approved prior to the provision of services and so that that is where we find ourselves with the idea of the agreement between n c o and its employees the palace in this case and also limitation of the forty hours per week because that is the medicaid funding that is being provided for these individuals day representative was asked the d s p is working and something occurs in the middle of night that requires their attention they're expected to perform that work if there is not to the client and they're there yes they are because otherwise the clients left with no one to help them right and and fifty four dollars i'm looking for the similar language that he's limited is capacity for learning retaining skills therefore it is necessary for him to receive assistance with all daily living skills by receiving the necessary