judgment since there was a jury verdict we have this very deferential standard on the issue that you just raised i don't know quite how you get around the very deferential standard i just don't understand it it seems they get really high paid called regular pay as they can get the higher retirement but they negotiate the regular pay so that time and a half overtime is built into it so they get their overtime and they also get the retirement as though it was not overtime you can go either way on whether they've managed to skate around the law on wages in hours so  went to the jury and the jury so that it's ok under the wage and hour act i don't know how you get around under state law all regularly scheduled work hours are to be reported to the public employment retirement system for fireman purposes the city admitted in the testimony of the fire chief gary gillis confirmed that the city was mis reporting the income of these people all of that regularly scheduled overtime was in fact reportable you're telling me about what the testimony was rightly what do i care about what the testimony was were supposed to take the parties had agreed to a formula by which you could calculate the regular hourly rate from the salary that both parties agreed included overtime for all of the hours worked in assaults or both the supreme court said that the parties did not in fact  here to the agreement that they believe that they were entered into the court said you have to the court must look beyond what the parties purport to do and then a fly what they actually do on here the court that does the looking is the people on the jury and i looked but it's a legal it's a legal issue if you looked at the substantial evidence in this case all of the evidence in this case again a fight that the regular hourly rate was determined from their salary based on a formula of dividing the annual salary by twenty nine twelfth's this quarter repeatedly held in cases such as marshall vs chawla and brennan vs almost disposal that the employer has the burden to prove that there is a regular hourly rate of pay and that that regular hourly rate is an actual fact what is actually paid for the first forty nine overtime hours and in this case all of the evidence the city's payroll records the city's payroll clerks the personnel director every single witness in this case say for one their expert moment i don't understand why court would have to say as a matter of law i will go with a number of witnesses instead of the one that's not my point my point is that you have to look at the actual of testimony as to that the union and the city had worked out the salary based on a regular hourly rate i know you're on the testimony is unclear as to exactly what happened the the union president testified that she was unclear as to how they were paid but it was her understanding that the pay was straight time that there was no overtime or half time component to it and again getting back to anyone else to testify about what the deal was between the union and the city no cites or no your honor that was the only witness that was presented and again it's the city's burden to prove the end user didn't testify you know the expert never purported to testify as to the deal the expert simply did with this court has repeatedly said cannot be done which is to come in and after the fact try to create hypothetical hourly rates to give the illusion that an employer complied with the law by simply creating numbers and this court has repeatedly said that one thing i thought the president of the union the women that you talked about testified that the new wage was discussed and agreed upon and then a city administrator guy named power explain the calculation right the parrot testified that he came up with or tried to come up with a calculation for an amount of salary to pay people and and the union president said yes they presented an amount of money to us and so that was going to become the base wage her understanding that that they swayed was now go straight time but all of this is really not relevant your honor because the courts and the law say you have to look at what actually happens not with the parties purport to do or believe that they're doing again say that your honor but but again what people say is not the test it's what they actually do in the in the in the prior cases we have employers who come forward and say well i intended to pay you and in compliance with the law i thought i was painting this way or that way and the court said if we indulge that kind of after the fact rationalization then the employer can alter the rate and avoid overtime major one of the employees testified  they were told would be added to their base pay and i when i look at that i say ok we had a base pay before we have a new base pay the prior base pay covered forty hours a week the new base pay is intended to cover fifty six the calculation of that however did not near a full fifty six hours the parties can agree to set a wage in any way they deem fit so long as it complies with the law but once you agree on a salary and the city says we pay only on a salary you have to be able to identify the regular hourly rate from that salary and there has to be an agreement as to either the specific rate or the formula to you to determine that rate from the salary before you work in this court has repeatedly and i can't under state th compliance with the f l s say because it's time and a half of that rate in this case they take a salary and they send divided by all the regularly scheduled hours of work that is consistent with both supreme court decisions and regulations as to how you calculate the hourly rate but there must be an agreement on that formula so that the evidence can i can follow how to put together what you're saying with the supreme court formula they reduced it to writing in that formula had a component that contemplated stepped up over time so you could take the monthly salary and you could divide it for example with somebody work fifty or sixty hours ok twenty hours of overtime in there so you have forty hours a regular twenty hours of overtime you could add another ten hours i think residents have to get here they work fifty six hours and they treated as forty hours plus sixteen hours of overtime have to leave to pay their way and call it salaries to get the retirement based on the higher salary your honor which seems to be just with these two authorities controlling authority say yeah the difference is if you have fifty six hours and forty is free time and sixteen is overtime and you divide it by fifty six hours that gives you only the street kind rate you have to include another eight hours to represent the half no no everything over forty was thre sixteen times one point five times that you hourly rate come up with that's a no you are that's not what i'm saying how do you distinguish that from what you're saying yeah it might take if i were six hour  honor if i'd pay two thousand dollars a week and you say subtract forty hours what's the dollar couldn't do that without knowing the hour and it we work to seven high school algebra you have to know that's why this court has repeatedly said you have to know the hourly rate you honor but i do know what the case law says and i do know that you have to have an hourly rate and you have to be able to identify it and you can start with a salary and start the ducting time without knowing how much that equates to i mean the marshall versus challah case say exactly that reynolds younger men hard with the united states record supreme court says the same thing it's an actual factual if you go back and you say what are they paying for the first forty hours that's the straight time you don't have time you don't pay overtime what are they paying for the first hour of work in the week that is the regular rate and that is the rate of birth with yuri is that the only way you can do this is take their total pay divide by fifty six that's the straight time pay forty and that gives you the straight pay through the forty hours and then to comply multiply sixteen times one point five times that rate is very that's not the only way that is that is a common way the other way would be to have an advance agreement i could never have one of these jelly plans that the supreme court and that regs they were ok you could actually if you had t those formulas are very clear they include an additional component for the halftime in the formula the city does not include a half time component in its formula at all and that's one of the has to be agreed upon prior to working that is the formula upon which you create the hourly rate and you can support your argument we'd have to disregard the expert testimony in this case right the expert is not calculating the hourly rate so the answer is yes the expert or the expert by  own statements at trial not what the city has represented in its response by its own stately trial said i'm i am calculating an effective hourly rate using some hourly rates that were not agreed upon by the parties and i'm going t is that in the record that he thought he was not calculating and hourly rate he well he said he was calculating an hourly rate he did not say or agree that he was calculating the regular hourly rate  five i don't see what you're referring to the six twenty six with the top five sixty five at the bottom and i don't see what you're claiming it's there masters reversible error which is error that likely affected the jury decision and here that as the court has already mentioned the there was evidence on both sides and the jury accepted the cities that make it easy for  lay out the evidence to exactly who testified to what the throw that there was a formula so that they got screwed time for forty hours and time and a half for the sixteen and just way out exactly what the evidence exactly i would have a hard time finding things for example when you said mr perry explained this all to the union i couldn't find on either page two twenty seven top number of father number  so that's the intent and then the agreement mr parrot talks goes on to talk about the negotiations or discussions with the union and the storm essence that's what happened here with what was taken was what was the effect of hourly rate in november two thousand before the change the spare preserves doubts and rolled into overtime for the regularly scheduled over time for the extra sixteen same outcome exactly so if we need to take in a disposition here's what the jury had to hang its hat on that's where we go that's correct  the regular rate there's nothing in the record indicating that i mean he wasn't specifically asked that work to me like you just doing arithmetic he was doing the tenth grade algebra case some jurors are awful well let me let me go to got a couple points mr parents testimony is actually an incorrect assertion that not parent calculated wages based on a fifty six hour work week the testimony actually said that the city routinely deducted three hours of sleep time for every twenty four hour so he calculated wages based upon twenty one hours shift rather than twenty four actually questioned all of that was presented to the jury in the jury could determine whether or not what was actually calculated then included the over time or did not so that's a argument well it might be a jury question on some underlying facts but as has when you look at whether the f l s say says the regular rate is a legal certainty the underlying facts have to be looked at the novo because the ultimate conclusion a legal conclusion and this court in charge of vs marshall i keep repeating this case when you asked what the plaintiffs knew what the parties knew the court specifically said there that the burden is on the employer to establish the regular hourly rate so  all of the personnel documents the payroll records every one of those those witnesses say this is the regular way that is the substantial evidence there was no evidence of any other ra and if you look at the collective bargaining agreement actually between the parties there is a provision in section seven point three this is two seventy two of the excerpts where the parties actually agreed that from the purpose requires the payment of premium overtime regardless of the level of the regular hours and that's it doesn't matter that the regular hourly rate is fair or non exploitative i don't i don't get why that helps you right that site there was for for that narrow proposition but the case more broadly is reiterating the principle cited in the in the brain inverses almost disposal in the brain in vs valley which i guess i missed seconds to brief didn't say so it we didn't the brief doesn't tie back to that because they're all citing their cross siding to one another but those principles are clearly stated and the elmers toing is the first one and then chawla in fact says we don't even have to get into