for the work that they do it's about compensating them for their principal activities and it's about compensating them for activities that are integral indispensable to their duties as law enforcement officers as addressed extensively in the plea to in the briefing in this matter  the district court failed to follow the record evidence and failed to follow the a pleasurable law this case involves three issues night when i say this case that in think lose both cases because they are factually almost identical the three issues are whether performing traffic enforcement while driving to and from their shift is compensable under these facts whether donnegan doffing specialized protective gear is compensable and whether florida law allows an employer who pays an employee nothing for some hours may borrow from other can compensate it hours and thus avoid a minimum wage liability by virtue of averaging turning first to the travel time of course of construed work to mean all activities controlled or required by the employer and pursued necessarily and primarily for the benefit of his employer and his business whether an off duty activity meets that standard falls into whether nonce the employee's time is being occupied by the employer or whether the employee actually has the freedoms associated with his individuality if the employer knows the work is being performed it's compensable the eleventh circuit this court has made clear that not all work related travel is non compensable meaning some travel time is compensable under certain circumstances both cases have a well developed record that would establish to a jury that work is being performed by these law enforcement officers while they are driving to and from work and that work as law enforcement you are clarifying question yes truck are you arguing a defendant's fail to compensate the plaintiff for the time actually spent responding to calls or is your argument limited to your argument that all the travel time should have been compensable we are not arguing that the time responding to calls is at issue here because i believe the record reflects that they were compensated when they would come for say an emergency situation like a traffic accident but what each sheriff in the leon collier county has done is improve excuse me created a policy whereby the deputies have to be performing traffic cop duties while they're driving to and from their shift and particularly in the york a case where deposition testimony is present from york as direct supervisor that says essentially they had to be traffic cops driving to and from their shift under my watch agency policy requires that so in evaluating the your case certainly the traffic cop duties that they're doing on the clock are thus the same duties they're doing off the clock but they're not getting paid as they're being compensated for the time when they actually stop and respond to a call or a traffic violation then why is the other time when they're simply keeping their eyes open not de minimus act we become sure it's more than just driving it's more than just keeping a radio on which is what the regulation on points and the regulation the district court relied upon this is not just drive to work keep your radio on and if you come across a you know a fatal accident or somebody flags you down we're not arguing that that's not compensable the sheriffs are arguing that either but what really turns this is that the same thing that these deputies are doing on the clock meaning traffic enforcement that means radar checks any violations running a stop sign or running a red light these are all very common things in the law enforcement officers here particularly as i said in the call your county with the deposition testimony  lawson it's the same duties they're doing on the clock but they're just not getting paid off the clock there really isn't a difference and that's something that i believe sergeant lawson is testimony makes pretty clear  that all they were required to do when doing the commute time was to keep the radio on and keep that as open so that if they sell an emergency they would stop or if they saw a safety lation traffic lation they would arrest the person not that day they wouldn't be doing exactly the same thing they did on duty when they own busy they sometimes drive in but they mostly or at least largely sit and wait in it particularly strategic for purposes of this action the use of an employee as a vehicle for travel by an employee and activities performed which are incidental to the use of the vehicle shall not be considered  part of the employee's principal activities and it seems to me these are incidental because it would be inconceivable for office in uniform and mark patrol car to pass by on accident or to pass by a safety violations like one of these cars sitting on the tail of another car so it seems to me those are incidental in all that they had to do is incidental where am i wrong i think your honor the difference is particularly in in the record the appellant's in both cases are not making the arguments that you know the time that they were denied time when they did make traffic stops but as noted in a footnote in the briefing it's essentially the same line of logic like a football referee or a baseball umpire not doing work when they're not making an active call they still are working they're still doing the same thing they're just not seeing a violation so these trapped the traffic deputies and which cover all of them here are doing work you not answer my question about why is not incidental and i think it is i'm proposing it may be incidental but cozy would simply be it would be terrible public policy to have marked the goals marked sheriff's the goals passing by blatant violation of very use of the vehicle i would agree that when it comes to severe serious traffic infractions accidents absolutely i agree one hundred percent your honor lee county has a specific policy on point that says you know flagrant violations are to be enforced if you're flagged down by a civilian you need to stop and of course that's good public policy but what the record in each case is that they're being asked to do more than just that and that's where the crux of the argument comes in with the threat is what is it being asked they're being asked to enforce all traffic laws not just flagrant violations not just accidents they're being asked to enforce all traffic laws just like they are on duty but they're deemed off duty that includes speeding if you're going ten miles an hour over the speed limit the law enforcement should be pulling that person over particularly in the orca case from the deposition testimony of sergeant lawson so it's the appellant's respect the position and in both cases that because they're being asked to be traffic police off duty which is the same principle activity they do on duty that that do whatever they would do after they get to work directed in both cases the record reflects the work being done on duty is actually the same as what they were doing off duty testimony of sergeant lawson his supervisor that says the new yorker was required to be looking for traffic violations and enforce them while driving to and from his shift and that that was off the clock and that the deputies failure to perform t is grounds for discipline up to and including terminations well you can be fired for it you should be paid for it and i think that that's that's the key and that would be the right in line with what lee county's policy is as your other brought up with passing by a terrible accident or a flagrant violation the deputy when he comes upon that would be paid for but by requiring them to be traffic police off duty and then there are traffic police on duty there performing a principal activity of law time there's wages when they got to work did they then go do traffic yes they did general patrol which include i'm sorry not to not to dodge a question or but they did traffic as part of their regular duties if they're not enforcement they get service calls while they were commuting yes or on not limited just up the story but they could be called to go someplace else and do something they could in emergency situations yes but that would be the exception mainly they're driving and they're just looking for anything that might be either emergency or traffic correct as the record reflects their radar was on this wasn't just simply what the regulation contemplates of listening to your radio as you drive in to work their radar was on their they didn't have to do anything after roll call that they hadn't already done when they left their driveway if i may switch gears to the second part of this which is the dawning in dothan claim obviously if something is integral in activity so first is whether the activity is required by the employer second is whether the activity is necessary for the employee to perform his or her duties and third whether the activity primarily benefits the employer as discussed at length in briefing there is a lot more to this than just simply putting on a shirt and pants each day the district court just summarily concluded that everything at issue here is just simply close and dismiss the case both cases on summary judgment the gear that is in question here is indisputable in the record required by the employer from the radio the mace baton strap magazine pouch handcuffs holster i could go on and on as to what's required and i wouldn't mention shirt pants ok the both cases have the same record essentially that the employer is requiring this significant gear to be worn and in both cases there's evidence in the record that reflects how much time is actually required of these deputies and it's a lot this is not just like putting on it probably took me five minutes to put my shirt tie and suit on this morning but for these individuals it takes a lot more they have to hook a radio up they have several firearms they have to get their belt they have to get other safety devices and have them all in place that's all important because this is gear that is necessary for the job certainly in york as case there is testimony that if you didn't have that stuff with you you'd be sent home from roll call well if you're sent home that means you can't do your job if you don't have your gear you can't do this job if you don't have your handcuffs with you for example you can apprehend suspects if you don't have your vest on you can't defend yourself properly if you don't have your radio you can't communicate if you don't have your firearm likewise you can't defend yourself and dispel threats and keep the public safe so it's the appellant's position in each case that the gear is indisputable necessary to the execution of their job as law enforcement officers as to the third prong whether it benefits the employer certainly adopts because the gear is necessary and likewise flows that it benefits the employer here because they're able to do the law enforcement activities with that gear that allows that the deputies to help fulfill the sheriff's myth mission to protect and serve keep the public safe i can say good and go on and previous cases is that  even if it is indispensable it still has to be and girl so merely because it's indispensable doesn't get you home is that not go away it gets gets us on the way but not home your honor i would agree with that however i think in this instance it's also also integral for the same reason that it's also indispensable you the law enforcement officers have to have these things that a law enforcement officer without their handcuffs can't contain  interpreted in light of the purpose of total polack and that was to abrogate the earlier supreme court decisions which it interpreted this low in disregard of long established customs practices part of getting dressed and getting dressed it was not in any custom compensated is your next question directed towards the location offing then yes i am and my understanding here it is done at home in each case it was done at home either sheriff's office provided facilities on site so the officers that seems to me to be crucial  it certainly consistent with past custom i don't necessarily think that it's unreasonable but something can also be incorrect without making it unreasonable i think that under the facts of the case and how modern law enforcement has developed that the rule ought to be changed in this this case both cases provide an opportunity for that potentially being required to do this much dotting in darfur is not it's not certainly it's not to minimize this by by the record shows you know sometimes thirty minutes each day i guess the real question is why is does it matter if it's done at home versus being done on premises arguably these particular with the drive  time issue if they're performing law enforcement on the drive time as required in each of these cases or at least as the record could reflect in each case then they have to also be prepared so the location of the  case and i'm forgetting the exact name of iran if it is yes it the issue here is that i don't believe that the ninth circuit not case got it correct respectfully i think that because of how much time is being required by these deputies it's taking up too much time and that gets us back to what the intent of the fair labor standards act is a fair day's pay for a hard day's work and that decision is not in keeping with that it is essentially robbing deputies of their free time and saying they're not going to get paid for it and both appellants believe that that is unjust unfair and not in keeping with the  intent of the fair labor standards act i said i am running out of time as to the issues regarding the minimum wage claims unless there are questions i would defer to the briefing on that subject it please the court counsel my name is david stephanie in along with my colleague nicoletta daryn we have the privilege of representing the sheriff of both collier county florida and lee county florida in these proceedings if i could just clarify i have a set thirty minutes to address everything with you this morning are we saving the minimum wage argument for later do you want to hear from me on that issue upon counsel's representation there really are no significant fact issues here and we are here on to summary judgment orders that were granted to the sheriffs in these cases so that with respect to the specific issue of the commute time  we think the lower court specifically ruled correctly that the that the commute time in marked agency vehicles is not compensable working time under the port that they did while commuting in off duty status those that's not the issue here counsel's as has clarified that what they're trying to argue is that the deputies in these cases were engaged in law enforcement or or traffic enforcement activities during the entire scope of their off duty commute therefore it makes their off duty commutes completely compensable which is one hundred percent contrary to the department of labor's regulations and quite frankly it's contrary to every virtually every reported decision in the united states about the use of an agency vehicle which is a common practice in many law enforcement agencies dispute the fact that they say their job coming in to work is the same as their job after work that is they have general traffic in portsmouth the radar needs to be on it's not just more emergency i'm not saying traffic enforcement on the way to work with the right are looking around not just for emergencies but for general traffic enforcement do you agree with us what they say they are required by the sheriff's to do or that's what their declarations say ok that's not what the sheriff's require them to do the sheriffs require them to have their eyes open to have certain equipment on i notice the radio at their declaration say the sheriff requires them to do i understand that that's what their declaration say ok the difficulty is your honor and we brief this to the court the operations manual and directives of both sheriffs in this case require the deputies themselves to report their own time worked consistent with the regulations and directives that are given to them and at the end of each work period they are work fourteen day work periods of both agencies at the end of those work periods they have to certify under penalty of discipline that their actual hours worked are as reported in their time sheet and some of them do report their time electronically they still count time sheets for referring to them so what the what the appellant to do in these cases now by arguing that their whole commute time should have been time worked is they evade reporting that they never reported that their commute times were comp work hours in all of the three years of the f l a say a political to each of their employment or the five years of political to there for a minimum wage act claims they never reported at all now they want to come back after the fact and change their time sheet and try to suggest that they were actually on duty engaged in compensable work hours while they commuted in their agency vehicles from their home to their assigned and just watch as that what did the manual say what does their written policies themselves and they actually help deputies by articulating for examples of the kinds of activities that they should pay attention to if they see it while they're commuting in an off duty status one of those examples in the specific directives is if they come upon a disabled vehicle they're supposed to provide assistance until a on duty sheriff deputy can report and assist secondly if there's a traffic accident  vehicle accident that they come upon that where there's no emergency vehicles yet there they are supposed to attend to the motor vehicles and take action as appropriate again waiting to and on duty office appears on behalf of the sheriff's office additional opportunities are clearly if there's a flagrant violation of a traffic rule somebody speeding hundred miles an hour going across the red light they're not supposed to just ignore that and that again makes  good good public public policy sense and then the finally it is the issue of traffic stops there is some direction and if they do a traffic stop for some flagrant violation that they're supposed to follow the same rules and  es actually happen the collier county policy specifically let me see to the it's sexist chapter of ohio intend section one which deals with the assignment and use of color county sheriff's office vehicles so that's the specific section so that in chapter a letter of ohio if and ten section one which is the assigned intitled assignment and use of c c s of vehicles  so you know and i think your honour's you know part of the overall picture here is while commuting in off duty status the deputies are not required to wear their full uniforms they are required to have their photo id with them and a badge and a in both agencies so they don't have to have their full uniforms on which again denotes that they aren't typically required to do the kinds of law enforcement or traffic enforcement that appellant's contend that it was part of their responsibilities an off duty commute they got to have their baggage identification at bad which does hasn't has a photo id your honor they have to have their firearm they're there issued firearm and their badge their roll call or get to the substation where they're signed to work do they then go off and do the same job well that's not all that what they do the road patrol deputies go back out and enforce among other things the traffic subject to being called for example of if there's absences you're not scheduled to work but if there's a civil disturbance or something that requires an excess amount of manpower the sheriff can call you in as part of an unneeded emergency supply of eighty which defines routine commutes not being compensable is the specific section where it addresses the that's insight in chapter p two section two just basically in title compliance with the f l i say that's where the sheriff makes it clear that that routine commute is not compensable working time or under the the leak county policy since you asked your honor with respect to these things are in specifically chapter twenty two point five point two point four and i think this is an important statement completely belied by the declarations of the appellant's in the calderon case subpart f of that particular policy statement reads as and i quote while off duty personnel are not expected to be strict traffic enforcers however they must not ignore flagrant violations which in danger life and or property or which could bring disrepute on the office like to point twenty two point five point two point four sub graph f as in frank so the floor at the end of that particular section is where the specific four examples of incidents requiring assistance from off duty personnel operating marked agency vehicles comes into play and again those are the disabled vehicle a motor vehicle collision a walkup complaint and then a traffic stop caused by a flagrant violation so the policies i think are clear that it's intended that they keep their eyes open listen to the radio and county council answered affirmatively to the question as to whether or not off duty sheriffs are subject to being called while off duty the answer in both cases is no generally in the absence of some sort of serious emergency the the sheriff's office schedules deputies on their own on various shifts that line up with each other so they have on duty deputies to call to handle any emergencies that have happened in various  enforcement districts around the county so the off duty deputy who's commuting to work is not subject to being called until the end of the roll call when they check in and then they go on line on the on the computer aided dispatch system so that now to be clear and transparent a deputy can offer to handle something by calling in they are not allowed to do so unless they're authorized by dispatch so they have the ability to call and take on something like motor vehicle accident just occurred or handle this but if they do that the policies are clear at both agencies it's compensable work time it goes down on their time sheets and they get paid for it and if they work more than that eighty six hours they get overtime is that business about the flagrant they cannot take no flagrant and not required to do  think is listening or honor so that it in the event that something comes across the radio that they happen to be very close to that they could call in and communicate to dispatch i'm right near that and their declaration my site has to do general traffic to i don't are activities the case decisions as we decide in our brief in the interest of time i won't go through all those but underscore that such a routine commutes are not compensable working time under the f l i say and again the regulations specifically by the department of labor and twenty nine c f r section five five three point two two one f makes it very clear that having the radio on an operating an agency vehicle while commuting is not working and is not compensable work time this court has previously given skidmore deference in the mini a case to these opinions and guidance of the us department of labor and there's no that are precluded from being compensable out of the port of portal act and for that reason there is no violation presented by the appellants claims for compensation for those activities in this case with respect to the  only circuit court of appeal that has specifically addressed the issue of donning and offing and it being compensable for law enforcement officers at the circuit court level that we're aware of and there's every reason we was confronted with police officers who were issued uniforms and had the same kind of requirement to put on specific clothing as well as a protective duty gear and a duty belt and notice that there was no to police officers were not required to put on their clothing or their duty belt at any specific location and that was very significant to the ninth circuit and they found specifically that being  facts that the clothing in the duty belt is not an end or go part of the job responsibilities of sheriff's deputies at these public agencies is the bright line rule that a monte adopted consistent with integrity and i think it can be honored because because specifically for the same reason there's nothing unique in other words of what i think the money really relied on that abby case from the from the  southern district of california has and its articulation that that there's nothing special about get donning a officers uniform and the duty about that requires that it be done at the employer's facility or premises and so here or there's no record lockers available and the deputies are all putting their uniforms and and stuff on at home if that's what they choose to do the it step or two removed from their actual duties once their shift starts because they have they're putting on their clothes then they're commuting off duty in various lengths intervals of time from wherever their homes are to th necessarily follows that way just simply because it's at this fact you already conceded that they've got to answer calls when they're called going and so when they're commuting to work they're subject to being  with a traffic accident or answering a call so they have to be fully dressed not just badge and everything they have to be in for regalia so to speak have to have everything on because you all require them that is the sheriff requires them to answer calls on that what so it's even more than integrity staffing here because during the commute you're making them be subject to doing things and in fact are paying them so for doing that as on duty so they have to be fully dressed so to speak and are specifically the only in protective gear when they leave the house when in fact when they get in that patrol car say i agree that that's what they allege in their declaration but that's not what the policy say the sheriff's office in either collier or lee county i don't think it matters so much we have an issue of fact what the policy is if they say this and i'm told it didn't have the policy i their declaration why isn't that just an issue of fact here as to what really the sheriff is requiring you keep going back to what the policy says i said that's not the policy here is that what we're required to do yes your honor and in what they argue out of their perhaps own understanding but it's inconsistent with the sheriff's and i don't practice i'm just asking that why not affect issue then because it's it is a fact issue i don't think it's material because they can't be disciplined for not wearing their uniforms while they're commuting off duty because our policy and manual clearly say they don't have to have their uniform on if we think there is a difference between but not all of the gear on at home and  having to put the three items a badge and firearm on then we would have to really listen to what the low is with respect to each and then send it back to the district to determine what the facts are would that not be a fact issue if there's a difference if there is a difference you would your honor because there's not record evidence on how to minimize the time would have been to get your badge and your firearm and your photo i the makes no sense that they put it all in the back seat of a car parked in their own call i mean just common sense but maybe i'm wrong well some of the protective gear clearly as in the list of things that are issue but i have to have that available in the car and you know some of the stuff is most of the stuff that is required is on a duty belt that i grab their belt and put it on and the evidence  is quite varied in the record as to how long that takes and there's one affidavit that says it takes five minutes and of course the opponents claim it takes thirty minutes so we argue that's not again a material issue fact because it's not compensable either way with respect to the border portal act and its application here finally just must be specific on this issue of the minimum wage if i could just address it from the briefs this is a i think as we noted in our letter brief that the court asked for this is a an issue of first impression and that's whether or not the work week averaging method is the proper methodology for determining compliance with the f l s i ask you  week averaging method have determined that that is in fact the proper way of analyzing minimum wage compliance by covered employers as we noted in our letter brief the douglas case from the eleventh from the ninth circuit in november of last year after all the briefs were filed has joined this unanimous chorus of the other five circuits and went through eight different reasons which time does not allow me to review with you here but several of the reasons i think are significant  including the fact that the department of labor interpretations of stablish the work week as the measuring rod for minimum wage compliance way back to one nine hundred forty and that this establishes a long history of interpret in a statute that  created reliance interests by the regulated employer community this is a given in part how the agencies here have had determine their compliance with minimum wage over over the course of the years at issue here courts overwhelmingly and followed this department of labor guidance in multiple cases the route the the years and specifically congress has done many revisions to the f l s a since one nine hundred forty in the time they say and the light most favorable to the plaintiff and then you added up an average it they're still not anywhere close to a violation is that correct that's correct your honor and that's the way you could that's what we argued to the district court below in both  right and so really we don't have to decide the first two issues we could just say in any event even if you take everything they say it's correct there's no averaging i mean you plot averaging and there's no violation  take the light most favorable to the plaintiffs i thirty hours scuse me thirty minutes for the dawning stuff not minutes ten minutes thirty minutes even if you take all the commute time it's still well below denied ultimately as part of his summary judgment decision and how the math works out for those other fifty eight or fifty whatever number of additional deputies joined to the f l s a case though those are issues that i don't know with how the math works for  them so we doubt it we did have a collective action that had a whole lot more people as part of the f s a claim is that still a class a is that certification still extant no that could cause the judge deny that they're motion for class certification of the f m wy for a minimum wage act claims finding essentially there were no violations so there's there's no need to grant class or vacation but the additional deputies that join the collective action are still part of the f l s in the case and i don't know how math works for those additional deputies we did not present that and in other words some of the plaintiffs have opted in wrecked to get additional clients i see my time is up thank you your hon or we would ask that the court affirm the judge's summary judgment decisions in favor of the sh morning on your honor's let me get to that to the minimum wage claim because that's why i'd left off before what council has told you is somewhat accurate but what makes this case a little bit different is that it's the first opportunity i believe that a circuit court of appeals has had the chance to evaluate purely hourly employees with regard to the averaging as the letter brief indicated both  both sets of palin's here were paid purely an hourly the other cases for example the olson case involved commissions and as pointed out in the letter briefing those commissions you can't tie to any one hour of work and so thus in those situations it would make sense to average because you have to factor the commission across the entire pay period but all of the other cases that have been decided have not been purely hourly employees the recent ninth circuit case i believe that the ninth circuit opinion made reference to the difficulty in trying to figure out what the pay structure was there were all kinds of different pay structures by minutes by hours  believe there is even one other metric used to determine compensation there as well so it is the appellant's position that minimum wage violations here ought to be determined for purely hourly employees on an hourly basis this gets us right in line with the the ninth circuit case where essentially you can maybe airily but they have a paper area and they submit the hours and they're paid every two weeks is that correct that is correct yes if there is a standardized pay period it's every two weeks and they get paid how many hours is eighty something law enforcement eighty six or eighty six if they work eighty six then their pay eighty six times what are so there as they may be airily and they may go all over the eighty six but they still set up as an eighty six per hour two week period is that not correct yes it's ninety six hour pay period the difference though is that the fair labor standards act makes reference to the pay period as bringing in the employees as subject to the act but the fair labor standards act itself doesn't use the work week or the pay period as the metric for minimum wage it does as to overtime but it specifically references hourly wages and hours when you get into minimum wage issues and the appellant's argument here we believe furthers the interests of the fair labor standards act faired pay for the hours worked essential to what the respective sheriff's are advocating here by virtue of averaging is to take money that the appellant's actually earned for working and throw it over here to the other uncompensated hours to offset it but they're still paying zero dollars per hour for the uncompensated work it doesn't logically follow that there is that ability of an employer just like we had we had mentioned in olson olson says he can to basically alter the records in order to bring compliance and that's exactly what averaging would do your sensually altering the employment records to show payment for hours that have actually never been paid and is the appellant's position that that does not mee a standards particularly when it's a statute that has to be so liberally construed in favor of the employees so the issue here is one of fairness compliance with the f l i say and sticking to what the ultimate purpose of the act was which is to compensate each hour a minimum hourly wage and so for purely hourly employees we would ask the court to fight a minimum wage violation if each discreet hour is not compensate liken it douglas they were hourly employees in fact they didn't have a standard hourly right they got nine dollars and four cents per hour for certain things they got another right for certain per hour from nine to fifteen dollars per hour they were not just our lay employees they had different hourly rates depending on the task you see so this was hourly employee just like this case they were well in fact there are these cases i not understanding your argument about the if their hourly employees it makes a difference to the outcome i think it's because of exactly what the ninth circuit had said that you shouldn't be allowed to take earned money from one pot and put it over to cover what is a violation for repayment of zero for other hours that's what that's the argument and the difference is with the recent ninth circuit case they were paid many different structures here there is not that kind of pay structure there is one hourly rate so it's much more simple the ninth circuit case as as your honor pointed out has many different pay structure i'm just responding to what you say that this is only a case that deals with an hourly employee that's not correct it's other cases have people that were paid on an hourly basis on an hourly basis but perhaps i misspoke your order where what i should have said is that where they are paid purely hourly  this issue in just even if you add up everything because i did gave him thirty minutes for dining and toughing both times i gave him whatever he said his commute was actually doubled it and i still couldn't get a wage foundation if you average is that correct that if you average nobody's got an a it's like you got to come up with two hundred hours more in a paper you're it that's right that's not i mean  you have to come up with two hundred more hours to even get because they make thirty two dollars to get a wage file ation correct your honor ok that's that's correct and i think that really even all these twenty eight people if you do hourly here it kills the case it's about sixty four but  results the same yes it would if you apply averaging here it would and everybody is just because the hourly wage is thirty two dollars yes and i didn't do the math on the other ones as well but i believe you're correct that it that it would well because i came up  with have to be over one hundred hours nobody's got that correct the concern is more of a public policy issue with these these deputies we will concede get paid fairly well somewhere between twenty and thirty five dollars an hour depending on of course what their rank and experiences but if the court finds averaging is appropriate here what will happen with a ten dollar an hour employee or people that are not in the same financial circumstances as these other deputies and i think that that is where this case presents pretentiously danger of allowing averaging to continue because it will allow the employer unfettered discretion to take money that's earned and put it elsewhere and allows the employer not to pay those certain and get away with it absolutely correct or are that's exactly what averaging does the employee has essentially a contract with the employer to work a certain number of hours and does and then for other hours that are worked but not paid they're getting zero because the earned rate gets reduced which would be a breach of contract and one thing the court may be thinking is well why don't you bring a breach of contract claim or unjust enrichment what we did but in this instance it's against the sheriff's office and we ran into sovereign immunity issues so as deputies there they're kind of caught between a rock and a hard place on that and we also submit that to the extent that there's overtime the overtime claim is obviously more valuable but this gets into the case where somebody doesn't work eighty six hours they work eighty hours and then there's five uncompensated or should they be getting at least the minimum wage for the five uncompensated hours that's really what the minimum wage claim is about it's not about double dipping for the overtime so i want to make sure that that that's clear for the court what we're talking about is essentially what's often referred to as gap time so it's the appellant's position that averaging should be rejected in favor of requiring compliance for purely hourly employees for each discrete hour into not allow the employer unfettered discretion to compensate for its violations by borrowing money earned for other tasks and hours worked let me ask you about the statutory language with regard to this argument because i thought this is how all these circuits ended up where they have ended up shall pay to each of those employees who in any workweek is g this wealth of authority has developed is that correct i believe that's correct you're out of luck of the text of the statute i believe that's correct but i believe say well if you want to do it different you need to change the statute i would say but i think that the reading of it may be slightly off the because what that language says is that if the employee does work in a work week he's then he or she is then covered by the act it's not saying that the work week is the metric used to determine minimum well it was to say that when in their work work is paid not less than seven twenty five per hour  anyway i think that that's how they get on this track of their bridging correct and i see that i am i'm almost out of time for the reasons stated in the briefing and argued here today respectfully asked the court to reverse and remand both cases