should be reversed and we're asking that the court make a finding that mr simpkins was in fact an employee under the fair labor standards act economic realities test the economic realities in this case or that number one mr simpkins worked for the defendants for more than a half decade he did so want a full time basis he had no particular specialization he was hoarding to them their general handyman and he helped them out with whatever they needed from collecting quarters from laundry machines to taking out the trash so let me let me say we don't we're not usually finders of fact at this level why aren't you just arguing that there are disputed issues of fact on his status as either on the one an employer on the other hand independent contractor is the i mean there are facts that would point in the in either direction but for ultimately this is a legal conclusion as to employee status and i think the fandor stand that that there is this bizarre language i'm concerned about the way and this isn't your fault at all about the way our court has expressed the standard of review usually when there is a legal conclusion and there are underlying facts that need to be developed before you you can draw that legal conclusion at summary judgment you don't resolve the facts summary judgment you as ask whether a rational trier of fact could find them in a way favorable to the nonmoving party  and i think the language in our opinions has been confused about that there's talk of clear error review which sounds like we are the trier of fact so i wonder if you could talk about that for a minute sure that to the extent that there are facts  doesn't matter that that's irrelevant his own supervisor thought he was an employee but ultimately that doesn't matter there's an independent contractor even so here's the type of facts that are in dispute they claim did he go in and get his duties from a pile of work orders or did somebody tell him what to do it doesn't matter the supreme court and goldberg versus whitaker that was the case with the people nipping at home and crocheting working whenever they wanted to whether was in the middle of the night out  that's not a disputed issue affect the facts that are not in dispute your honor or that he worked for them for over half decade he was paid on an hourly basis the entire time and they come back on the other side with the two agreements that he signed the second certain strange crossing out of the terminations date and somebody writing in to be determined he's getting paid by ten ninety nine so he's taking income tax deductions from his ten ninety nine income so i'm not saying that that's dispositive either but it's doesn't that have the feel of you know there's evidence on one side there's evidence and you know it doesn't your honor and here's why the supreme court said so in the tony and susan alamo foundation case the court said whatever beliefs the parties may have had don't matter in that case both the putative employer and the putative employee did not want employees standers they vietnamese protested it and the supreme court said they have to have the standard whatever subjective beliefs that doesn't matter because otherwise an employer could just have somebody sign a contract waving their rights what matters here are letting on the just subjective belief when there's some people testify that he did decide case that oversaw the fields decided when to work again the goldberg case from the supreme court said it doesn't matter they were working at home nobody knew when they work so whether he had to come in between eight thirty and four thirty or he just did that every day almost for over five years and he had his mitts invoices to get paid and he doesn't get employed benefits right he doesn't get health insurance he doesn't get yes i have social security taxes withheld from his paycheck well for most of the time they actually filled out his invoices for him and he was an e mail from his g mail account where he put in the time but again your honor we have to look at the economic realities in this case and what what the courts have said over and over again is you don't look at the labels and so the how he filed this tax returns that's not a factor in the economic realities test even the department of labor says so the whether he had input into penick contractor agreement that doesn't matter you look at the work he did and if you look at the factors that this court has found to be dispositive and all if you look at what the supreme court has said is not dispositive that's pretty killer lee relevance assuming you know in the work he did i know he testified that something at the ninety nine percent level he was using the materials and tools that they gave him but all of these tax deductions suggest and there is other evidence or testimony record that he's using his own equipment a certain amount of the time that's a factor that's certainly a factor but to get back to your point your honor which you originally asked me even if the court were to find that one factor were to favor the defendants or or multiple factors you have to you have to look at all those factors in a nutshell and this court has that's why i'm having problems and makers i hate multi factor test anyway that because they do this to us but why isn't it up to a jury to decide how all those factors  because the disputed facts here are not outcome determinative what this court has said the most important factor is economic dependence he was clearly economically dependent they were his sole source of income for over five years so what about our hypothetical of the lawyer who has one client you know the lawyers economic but the lawyers in private practice lawyers not in house the lawyer has one you know pays the rent supports me kind of client right and if that employee like mr simpkins worked for them for five and a half years he used their their tools he it was his sole source of income all those factors he would become an employee that's more of an in house counsel that is not an employee so the facts that we have here the dick share duration of the relationship his sole source of income you have to get back to those factors and those factors are not in dispute what's in dispute in this case is not i mean that the both parties here agree the facts are not in dispute that are the material facts we believe that the material facts didn't require an outcome for mr simpkins in this case but the only was the problem you say the two of you agree on all of the material facts except you're here arguing to us that all of those material facts point in the direction of employee unless they're going to say something that will stun me after reading their briefs at least in their briefs they say all of those materials act going to direction of independent contractor it can't be both well let's talk about the facts of the supreme court has said matter those but the facts that they keep turning to judge are there how he filed his tax returns that he signed a contract the supreme court in rutherford said labels don't matter and illustrate of cases the hopkins vs cornerstone case from the fifth circuit from two thousand and eight there are an employee was suing for wages he had previously defended a sexual harassment case saying i'm an independent contractor i can't be liable and the and the fifth circuit in that case  that reversed and reversed the district court because the district court there found that he was essentially a stop from claiming it just i think like the district court was essentially saying here with respect to its tax returns and the fifth circuit said no two different standards the f l s a standard is much broader then in that case it was the title seven standard and they recognized it's a quote unquote semantic inconsistency to say on one hand you're an independent contractor and then sue under the fair labor standards act and say you're something else but nationwide the supreme court's decision post lauritsen makes clear that the f l s a is extraordinarily brought we're not talking about the tax returns standard we're not talking about what he puts in a contract let's start with the plain language to suffer  to work standard that's the language in the statute the district court diffuse that anywhere it's an opinion it's opinion and the defense don't use that language anywhere in their brief we need to get back to what the plain language of the statute is and  looking for suppose you got your ruling that he's that he's an employee what else happens well then what's going to happen judges we would have that we would go back to the district court and we would look at the amount of damages the number of hours he work over forty in a week right and so they say well he was actually paid more than the employees maybe not a lot more but he was paid somewhat more than the employees do you did we go and unravel his pay and try to figure out what it would have been if he'd been employee and how much of it you know actually would have been allocated to the pension or health care or whatever you know there's no set off like that in the f l a state judge and in fact almost every case an employee that's being paid straight time if they have been that the employer is paying somewhat of a higher hourly wage is not entitle to pay straight time without deducting medicare and social security maybe the employer can have you know zero benefits some employers do  a factor or not a particularly important one well i think with the duration it's critical he answers yes or no well i think it's i think i think the fact that you're exclusively working for one employer gets that and but again you have to weigh the economic realities of the relationship and the core despite facts in this case are not in dispute and i keep coming back to them because they're so critical in this case the core facts length of employment always paid on hourly wage step by the defendant's sole source of income for more than five years this it wasn't like you showed up and did work for him up his sole source of income for more than five years and no particular specialisation so when you look at all of those contractor who entered into a contractual relationship with the ha at first to perform rehab work later maintenance work at ogden manor who retains the devic and autonomy in the work that he performed both pursuant to the contract and in practice and you know on the autonomy point all people and you know employees and independent contractors of like have quite a bit of autonomy and if i tell my assistant you know that i want i want her to organize my case files in a certain way i don't have to stand there and hover over her and say you know i don't like alphabetical order i prefer numerical order or whatever and why did you you know that decisions are made by employees decisions are made by nurses about how to provide care decisions are made about people who are maintenance workers about which job to do first in the day would know oh the toilets overflowing or maybe i need to recall the bath tub well maybe i'd better address the overflowing toilet first people people make decisions constantly sure your honor and it's true that there is varying levels of autonomy both in the field of true employees and true independent contractors this is i don't understand why this isn't disputed i mean i'll ask you the same question because although he starts out with these two written contracts the duration of the second one is ambiguous at best and for the three year lookback period especially for i say it's not at all clear to me that there is any contract and it does seem on the economic realities of it he is indistinguishable from an employee who's doing maintenance work your honor we disagree that there's ambiguity as to the duration of the contract the contract itself did not have a termination date it had so he said employer well you could have told him anytime you want to we don't want your services anymore you were certainly not under a contractual obligation to keep them any longer the contract just required a thirty day notice requirement for either side to terminate the contract that the contract had an expected expected completion date for his work at ogden manner that expected completion date was changed from a definite duration of time which was the gut rehab work at the n s p properties to more of ongoing work doing a day to day maintenance person yes right and your and your honor we should be little the degree of  skill and experience required for him to manage that work he was it like i said next project manager an ex carpenter he was and this is not disputed that he would receive a list of work orders it was largely up to him as to how he wanted to execute those work orders but they could be something like that so i mean look i'm all admiration for maintenance people i wish i could do more of it but it's but that's the way a general handyman kind of person is going to work a lot of places of work have an individual who they hire who can troubleshoot a whole variety of problems terrorists that they don't have to go out to some more expensive presumably independent company you know  to maybe it's just a leaky faucet and who's going to fix that instead of like replumb the whole facility so i don't know that i'm concerned he's totally konami really dependent on th authority people he gets his job orders from and every day they pay him i i don't know why there isn't at least enough to create a factual issue is job status your your comment about the fact that he did routine maintenance somehow suggesting he's an employee takes a question does doing routine maintenance make somebody in of itself an employee of the great number of companies have somebody that maybe  at and that may very well be in this case if you look at all of the lords and factors in addition to those the other factors that we argue are relevant factors are we supposed to look at in order to do this and that i counted about eighteen of them excellent question your honor  performed by the worker was integral to the business and then subsequent to that sus has looked at the discord and such give us a look at other factors like the absence or presence of agreements  nature of the compensation there is no sets a set of factors that are exhaustive and i think berger basically tries to get out of all of this by saying that all of the things you're relying on have been declared to be irrelevant by the supreme court so w two versus ten ninety nine doesn't help us according to him and the existence of the name independent contractor on the agreement doesn't help us according to him so so how do you respond that we agree we agree that labels are not determinative in fact so what do you have other than labels sure your honor and certainly we have an independent contractor agreement for getting the name independent contractor agreement that agreement sets forth in clear detail aspects of control as to what plaintiff will retain and what he won't retain it specifically it contains a clause your honor one moment that said that plaintiff in this case under the terms of the green meant retained sole and absolute discretion in the manner and means of carrying out his activities and responsibilities under the agreement and then later there was a clause mentioning that d h a could give him suggestions but not instructions as to the means and a ton of evidence in the record to show that that's not how things were done there's a lot of evidence that he's directed as to what to do this day or that day he's directed as to what kind of work he's supposed to these aren't just polite suggestions you're on to the facts telling the facts in the light most favorite shirt of him could a trier of fact drawing reasonable inferences not see this as the du page housing authority telling him what to do in the same way that you would tell any skilled employee what to do you don't micromanage your skilled employees if you're an employee of a law firm you have a certain amount of leeway in the way you do things you are no reasonable trier of fact could find that in this case the issue of control weighs in favor of plaintiff because if you look because if you look at those individual facts it on they all indicate that when he was given any individual any individual task it could be you know anything that had to be done in one of the units it was up to him and his devices how to do that they relied on his expertise to do so now if if it was the case that which comes up in the plainest brief at at one time or another would decide that certain work orders were more urgent than others right that doesn't detract from the fact that when it came to executing his work he was left his own devices it doesn't dispute the fact that just it just further clarifies the reality in the picture in the picture was that once in a while there were urgent issues that had to be attended to first then the g h a pointed made a plaintiff aware of that issue of that fact that doesn't he was trying to do the job that he was contracted to do i don't it's not to my knowledge where there are cases where there was a dispute as to something should be urt urgent or as a emergency nature or not psych i can't i can't speculate on that on that issue your honor but to your point in going back to the terms of the contract you know he was he was suggestions were only allowed to be made to him and not the final determination  in terms of the selection of tools your honor we have a couple source of information one we have obviously and mention in our brief his tax records that show in terms of tools and quote tools specifically over seven thousand dollars total of investments we as they are available the internal revenue service wouldn't wouldn't let him report this is w two income since the paperwork shows it's ten ninety nine income so there he is stuck with what you said i i'm not sure economic realities from his decision under the tax laws given that he's got ten ninety nine stew take down actions that are acceptable under ten ninety nine and let me be clear your honor our argument here is not that by virtue of taking advantage of the tax system that that in a self is somehow indicative of the control factor here we don't argue and we would concede that the irish english as the department of labor has said what matters in this case is that his tax forms are evidence of the actual investment that he made in his tools which is one of the factors investment in the instrumentalities of the tools is a factor of the six lords of factors that this court should determine and look at as a starting point and making a final determination  this case you tell me what the we're sorry did you tell him what to wear your honor there in terms of the undisputed facts he was known to wear clothes that employees could not wear that were outside of the employee handbook like shorts in the summertime tennis shoes in the summertime but you know there is it in your brief that in the office he was instructed that this form of clothing was not acceptable  you just drew a distinction between on the job versus in the office well let me clarify this point because this is important there is robust testimony in terms of declarations and depositions that plaintiff i many occasions where a tank top lawyer was working now what he argues and i think we've finally come to agreement when you look at the reply brief is that it does take a step back he worked in a couple different places it predominately towards the end he worked it out the manager he also at times worked on p proper switching mention there was also then do ph housing authority's own headquarters their office where he occasionally very rarely but occasionally showed up to do some work there it was only in that situation in this professional office environment where he was asked not to wear tank tops this is a matter of decency your honor this is not a matter of having to maintain a employee uniform we're not talking about something that is is material and again it this this fact is not substantial or outcome  determinative really in your favor though as it does go in our favor because i think it's consistent what they ask him to do is consistent with what you would ask anybody to do whether they were employer and a contractor they show up at your office and they're wearing a tank top and everyone's in business professional a and so i wear my navy blue suit i'm not i don't know the answer that off the top my head your honor i could recite numerous tools that were his that he you know right how about let me read how about requiring particular kinds of books and there's nothing in the record that says that he was asked or and i'm not sure whether he said made into having so that the point is that he had a number of aspects that made him look like an employee right but they are yes so there the as the district court found that there was the control factor which it weighed significantly the investment in instrumentalities which we talked about in terms of its best ms and tools coupled with the terms of the  contract and the fact that he was and i didn't get to this although it was in my original intent this morning over paid it more a higher hourly rate than any of the of ploys at manor all of these things when you look at them they just outweigh anything that would be a very briefly your honor i want to clarify we are asking that the court