argument at distance and of course i hope that counsel my colleagues and the staff and anyone listening is safe and well we look forward to the day when we can be doing is back in person and today we just have one case that we scheduled and that's  sullivan and i represent the appellant mic you it i understand this is a special hearing so the court may have questions right away but i'd like to make three quick points supporting this court's opinion from last april in this matter  st in the eighty years since the passage of the fair labor standards act a person who is paid surely by the day which is how helix paid mr hewitt in this case has always been a day rate employee not a salaried employee because a day rate under the law cannot be a salary nd when this court issued its opinion its split precisely zero circuits it was a judicially neutral opinion that was not pro employer or pro employee it's simply stated the law as it is and as it always has been rd the department of labor opinion issued last week which i put in a twenty eight j letter to the core is persuasive authority that is that buttresses all the points that this court made and that i've made in lots of briefing and is the final nail in the apple lease position so turning to my st argument a person an employee paid purely by the day is a day rate employee that's what this court said because that's what the law is and one thing that in the opinion didn't talk about it later could be some more reasons why the opinion was correct is the day rate regulation you know the f s a recognizes lots bit and i appreciate for me the st point you made is the more difficult one of course that's because the pollute the majority had come out differently what about the circumstance where that day rate the guaranteed single one day rate exceeds the minim aren't we then just in a world of semantics to not say that that is a salary it's received it's pre determined it will never be less than that and in that context it does look like circuit authority of a day like this you start of zero and you don't know what you're going to get paid unless you start working the days day rates can be changed the day rates are depending on the number of days you work a week but here's the important panel opinion we relegated six hundred and four to a foot no we didn't reach it so at the moment i'm wondering if you're defending the panel opinion and just strictly looking at six on two in the definition of a salary two you would still say that could never be equivalent to a salary right because it's not a guarantee at i mean but entertainer all more time and that a letter will let you go in colleagues because i have a tendency but are you is that a fact dispute because when i looked at the hearing you had in district court the two of you were in phatic two of what a christmas trial you remember there was no fact dispute so are you saying now the it heli actually could have reduced even that one day rate if the record is open that it was a matter of grace not right are you saying there's a fact dispute those no fact dispute on that question that the h r director testified go to the jury unlike the case you insisted at this at the telephonic conference george the case the judge late decided he said you know what we're looking to pay stubs and there's no employment contract so we can't even say whether is or isn't a salary an hourly a day rate could be a salary we just can't say it is a matter of law so would the most you would get would be we are a person it summary judgment but it goes to the jury as to whether your client was out there is no fact in dispute how mr hewitt was paid is an exactly understood by all the parties there is no dispute that the facts should be spun one way or the other the facts here are und completely known among the parties the issue is one as a matter and i would urge you judge look at six o two a one it is something that the apple wheezed don't even try and reconcile ok they put it in a footnote footnote three on page twelve of their brief but it says if you are paid by day's work that's never a salary that's my position look at  six o two a warrant you can't read sixty today without looking at six o two a one it's all together it is so the answer is all the cases they cite are people who get some sort of guaranteed minimum him what the actual day rate was to be but that day rate itself was not a guarantee payment if he worked it he would he would get it just under basic operating procedures and you agree if he's told you get a weekly salary of a one thousand dollars then that call fights his salary no because it depends on how the person was actually paid if you look at lids if you look at a nominee those people were guaranteed an amount every week if you look at fuji one judge flutie one there was an actual written contract between jeff alluding and what they deleted in two thousand and four the requirement of an employment contract now with the word is pre determined and so if if the pay stubs show he always got a cow plus the point you want to jump to six a whore but no no i didn't actually i'm happy to go on this but think of it this way that argument that that you're questioning me about if it's logical end point is doubt that there is not one case one case in the united states that says a person paid by the day is paid on a salary that's it it's game set match on i agree that it seems odd whether they could but i'm asking you to give me the best are going to thorny for the fact that even a highly competent employee who is salary we still jump and apply six o four b what's the best case because compensated exemption except for judge shows dissenting opinion in faludi one which just looks at the text of the regulation which this court has to faithfully you know i thought that the six argued in hughes did think that you would still jump you're right actually i should have thought of that right yeah he used did say that that you would get your right to i'm sorry but i'm not like in my head the way i look at the pivoting like i you know if we're here because you're wondering if it operates like a salary not let me make this additional point that might be persuasive to you each exemption under the fair labor standards act ok has duties test salary test and saudi level it's loops that the situation where you know there is a minimum guarantee plus extras and then can whether or not meet the six of four be test the daily rate regulation that i read works as paid by the day in six  acquires two other regulations like the motion picture industry or something like that that talks of that's how i read them but not all the way i look at six so who are b it seems to say that if you're paid on a daily basis you don't necessarily lose the exemption or violate the salary basis requirements you thought you just have to satisfy six or b so it just seems to me that there's a middle ground here that if if possible if you are paid on the day rate that that you are if you have a component of your pay that is paid on a day rate that you you know that you could be exempt right but you have to under six hundred and four be have a component that is on a salary base and that's what i'm saying is that you've got to meet you've got to meet the two problems the the minimum whether the reasonable relationship test has been met here they don't they've never argued that there was a reasonable relationship there is not any you up there the reasonable relationship is under every bit of authority is so out of whack from what not and to my knowledge there has not been a reasonable relationship analysis or proceeding in this case today is that correct that is correct because their argument on the other side is it doesn't apply at all given let's in the ninety yeah  and i understand that they don't think it applies but but if it were to apply again i pathetically dead that would be something that would have to be litigated in the future well i respectfully disagree here's the reason why we know what he's paid that's a matter of record we know what the law is i'm a constitutes a reasonable relationship we know both of those things i brief that issue in my brief they they brief because i'm sure you're familiar with the principle that we ordinarily don't we're not of course i don't know ok do other employers pay overtime wages to to minimum amount that never amount was nine hundred and sixty three dollars who smokes is thirteen one hundred dollars for any day in which he performed any work he did not make it very clear he did not have to work complete day or full day if he did anything in any week if you worked one minute in any week he was guaranteed that amount of money at a minimum and what's the best record single record site the your client the employer could never reduce that because we don't i don't think we have an employment contract so where what is the single place you point to the record your client black discretion and who reduce that amount so so let me honor there is no the law says that salary amounts can be changed prospect of late ok and that is you can make an announcement to employees that we've paid you x amount salary you know  conditions have changed we're going to either raise or reduce the amount you know work from salary can't be changed it just can't be changed retrospectively you can't have an employee do a bunch of work for you expecting to be paid one you're representing helix in the jordan decision the one in front of judge lake where you'll remember he denied summary judgment for you because he couldn't confirm based on the pay stubs it this fellow was salaried i e you this daily rate wasn't a matter of grace he wasn't at will and were just inferring from paystubs deacon or point me to a record site yes so there's two things that we cite st we signed his offer letter and the nd thing we insisting to the judge wait here oh well judge lake has distinguished faludi and it would apply equally here we just don't know and i guess your answer would we well we do know more here as a matter of law from the offer letter rates that had been promised to the why did you move on with your argument as you heard where we went with opposing counsel when you know what you see it's a day rate that doesn't immediately look like a salary it doesn't you know i could determine it could vary by yes let me so the evidence in this case is that in his offer letter he was told what his day rate would and was always paid in accordance with the pre announced they r amount and your are it's our view in this case that this case must be pursuant to the highly compensated exemption which was specifically passed in two thousand and four for the purpose of making it we fully comply with regulation six hundred and one which is our burden sixty one dollars specifically references six o two which is the salary basis regulation i can explain how we only complied with both of reason and his total annual compensation always was over one hundred thousand dollars and it's very important to note that with the the highly compensated exemption the focus is that exemption changed in the focus turned to the total amount of compensation paid to the employee ringback and as a result of that and you mean that the focus changed because i thought i just heard you say that you  the other circuit courts that have dealt with this in the listening nonny who are if said that then under the highly compensated exemption you no longer have to comply with a reasonable relationship test fifty five dollars time to fifty two dollars weeks that's twenty three thousand six hundred and sixty dollars total ok the holly compensated exemption says the additional amount to get up to one hundred thousand dollars being around seventy six thousand dollars can be can be paid however the employer decides to pay it on whatever basis it can be paid in commission to be paid non discretionary bonuses there is no reasonable relationship between the weekly raise well so so if there was an amount in each of those cases that was a guaranteed amount that in the blitz case it was a one thousand dollars amount and it was referred to as a stipend as i think the timing is important they're guaranteed weekly in one case and i believe the other case a sort of a weekly annual sort of a mix is that correct so you're our position is that that these amounts of they were pre determined now the way of asking this question is do you have any authority district or circuit where there supports your position that he salaried as a matter of law where there wasn't in the record a weekly opinion wouldn't it apply equally to someone who's paid on an hourly basis but just high enough so would your position be that even someone paid hourly is salary if that hourly amount exceeds the minimum and it's guarantee yes it would it matter seems to me those two arguments that no court has ever announced seem to possibly be true only have few also meet the reasonable relation test of six hundred and four because it's talking about these guarantees under hours in days that in my mind aren't like salaries but i guess they could be but only then if that amount gets you pretty close to what the guy's going to make the whole year that's how i understand the reason relation to us so here's my question for you what case explains why highly compensated employee exempt employees are never subject  also to the reasonable relation to what case explains why that would be true because it doesn't seem to me to be true under the plain language of six hundred and four bit so you're out there i think of a nonny and let's say that exactly that if you meet the requirement for the highly compensated exemption you don't have to answer so ok let me ask it differently then because i have looked at those cases and i am still thinking those are distinguishable because those were weekly guarantees six o four b by its own terms isn't talking about weekly guarantees therefore subject him also to the reasonable relation test so your i think i think that the argument that you're now making what it refers what it says is that two imposes a requirement on the calculation of the pre determined amount and it must be calculated on a on a weekly basis i'm accepting it received if you receives it into guaranteed i'm say are your client he sure is highly compensated and now i'm willing to exceed to you and maybe the panel had a flaw maybe the flutie majority was right he has salary but even if that's true he's got to still meet the reasonable lation test because it's salary by day which which as an all go in circuit court said he said if you put clothes on a mannequin that doesn't make it a human well here if you're paid hourly and you're paid daily you're even telling us your logic is even an hourly rate employee somehow magically is salary and i'm pushing back and saying no rules contemplate that but if you're going to make that strange argument for a salary you've also got to show it pretty much equal c is fixed total it's the reasonable relation test and i want you to tell me show me a treatise or a case that tells me why we would never get to six hundred and four b because he's highly compensated ok so your are there are plenty of cases that say six though two and six o four are separate tests you don't have to comply with both of those tests what's your best case what is the best case you say plenty that never helps in lawyer saying what is the best  requires you to do a pre determined amount which we had which was never i'm not sixty three which is all or part of our company all or part of the received compensation and not subject to reduction  language it says and exempt employer must receive the full salary which he did for any week in which the employee performs any work which he did without regard to the number of days or hours work so he must receive the full line sixty three dollars without regard to the number of days or hours worked it doesn't mean it's got to be calculated by the number of days and hours worked it means he must receive it regardless of any time period worked which is exactly what he did get it was an hour late zone hourly wage worker as long as he's paid on the same ok cycle paycheck cycle as the c e o they're both on a salary basis  mcdonald's attack hey did you know minimum wage per hour but gets to paycheck every two weeks just like the c e o i think what you're saying is yes those would both be salary basis is that correct well what i'm saying is six o two requires a pre determined amount it does not say how that amount has to be calculated and it does not say it has to be accurately to buy buy buy any by any number you have specifically in then you would get additional pay but but the opinion that yes you know is that correct yes that is correct and the opinion explicitly states that the weekly guarantee was based on forty four hours a week ok and then more additional amount was paid above that just like in a nonny the additional amount for pay based on the number of hours worked per week and best sense i think that's express go to six of four because if you can buy a six a one there is no obligation to also comply with six of four so you know this court has always analyze these transactions based on the substance of the transaction and you know whether you call it a stipend whether you call it a base salary whether you calculate it on a day rate basis the substance of the transaction is that hewitt was guaranteed more than the minimum which he received and it was not subject to reduction based on the quality or quantity work not subject to a reduction based on the number of days or hours worked are you saying it's not a substantive issue whether your pay is by day or by a week i'm saying if you pay the pre determined amount and it's above the four hundred and fifty five dollars at least for a highly compensated it may be different for it may be different under the executive exemption not the how a complicated exemption at least under the exempted exemption the other courts that have looked at the issue have uniformly said you do not have to comply with six o four because six on one does not require you to comply with six o four and it would be so perfect for your time so last but i don't but i have two more questions just on that last point when you say well it may be different for an executive exemption what's your best case it states that six hundred and four is different for an executive then yes riley comps did you have one i think that again takes you to a nonny in length and that's why i thought you're going back and you are familiar with the hughes decision and i'm also familiar with the eight circuits coats decision from june of this year both of those and i read them actually disagree that six o four would be in will do you disagree with my reading of hughes you're on my reading if you is that they say they look at six o two and they say that the situation in their view doesn't fall squarely within six o two so they're and sure about six of them look at six o four and they say well they comply with six o four you have to have this risk this guarantee and reasonable relationship so because the amount of the day rate was less than four hundred and fifty five it was three hundred and sixty dollars or so and they are seeing a link it helped them interpret yeah that's the difficult last question joy judge wiener asked at the end of your opposing counsel the question of an industry specific question would you care to comment on that is there anything in the record or anything yes your are it in this case other tool pushers are paid on a day rate basis this is the site of the record is six  all they're saying is if you work one day's guaranteed for fifty five dollars that's let's look at the tax the pre determined amount has to be on a weekly or less frequent basis and then without regard to the number of days the text is super clear on that point and i have to tell you i'm amazed i actually thought about deleting my footnote in my response to the on bond review because i thought well surely h isn't arguing that an hourly employee is could actually be salaried but i don't know that's what their argument is and they've needed it this is radical the i understand that this judge but judge that's what the law is right so you're applying the law faithfully unfairly that's why stockbrokers when they sued companies who were a one hundred percent commission didn't have an exemption who were inside sales this happens all the time right and if the oil industry doesn't like it if this court doesn't like it if i get it there's no sympathy for a man  makes a lot of money who says he's entitled to overtime well what is the purpose of v f l a say though is it just to worry about how much people are paid or is it also to increase employment they was meant in as a russian air remedy to increase employment right by giving an incentive to companies actually not to pay overtime they want to hire new workers because they were out of work so instead of being  congress rather than being ambivalent between hiring one person for eighty hours and two people forty hours congress very much want to say we'd rather you hire two people at forty hours both to increase employment and to increase or her safety that is labor to write the regulations that's what that's what happened here like anybody else who doesn't agree with the law i mean my client came to me because he thought he was fired unfairly illegally ok but unfair subject to reduction for any reason do you agree with that factual statement and hope i don't agree with that i don't live here is the offer letter and then at six hundred and fifty four will conclude that he propter hoc logical fallacy just because somebody got the money doesn't mean they were guaranteed the money so how is this case distinguished from jordan that which is the case you kept telling the district court to look at was somewhat persuaded having looked at it i i'm just wondering if you're still pressing at that there's a material dispute here as to whether even that one day rate was pre determined is that something a jury should decide because it's not conclusive without an employment contract fairly developed is not similar to i only compensated employee that even if the executive exemption still takes you to six of or be six the highly comes into play would never take you what how do you break that  tests require an employee be paid a salary and that the salary be a certain level six hundred and four b the alternate thing still requires the salary and the rational relationship i see no distinction between the two under the point that it's ok or thank you any other questions no counsel add to me it's been very helpful and i appreciate greatly your patience it's clearly an issue that circuits are wrestling with this has helped me a great deal but that concludes the argument for this case and for the day your are free to leave