that we need to decide we believe the district court committed clear error in two different areas one is a job site is task we've been talking about that all morning the second is the burden shifting under mount clemens let me start with  job sidesteps i think the confusion that the court has had is is perfectly personified by the truck drivers in this particular case if you take a look at where we want to start the job side is has saying that you have to spend more than fifty percent of your time in california before the labor code applies that was so confusing the court got got it completely mixed up we know that that can't be the law because sullivan versus oracle teaches us those people only spent two percent of their time in california but they were entitled to overtime so now the question becomes what happens to respray claims do they follow millbrae claims or they follow paystub claims which we know there's a lot of issues with and minimum wage claims well the california supreme court has answered it as to the overtime claims we know that sullivan says if you spend any time in california by the way even if you spend a day maybe sixty applies if you spend if you work more than eight hours a day and california  overtime so that's that where they work the week or day over time is not what the issue is here right here is not overtime it is not the issue here is why just really because you had it exactly right judge chopra's decision that's the answer it is the answer ok why is it the answer in our case they say look does california law apply to people who travel outside of california yes or no answer yes i didn't realize it until just recently here's why wage order nine what everybody's been talking about what is it what is it regulating the transportation industry that's the entire wage were they legislate the i w c rather knew what they were doing how do we know they knew they were doing there for clues in wage order nine to tell us that they were dealing with interstate workers one of those for clues number one they talk about the motor carrier act what where do you when  talk about the motor the motor carrier act is under the f l s a which is the broad federal labor law that applies unless you have a state law that's better for the employing under the federal law it's as if you're driving a truck across state lines and your truck weighs more than a thousand pounds you're dealing with interstate commerce there's no overtime so you know a california said under way to order nine for truck drivers they said fine we incorporate that and we say that if you're a truck driver and you're going across state lines we agree you don't have to pay overtime because there has got sketchy overtime laws but then they came back and they talked about the f l s say we've talked about collective bargaining by the way no collective bargain for us we're free  r and finally i talk about the federal railway act now all of these are discussions about federal law meaning that they're dealing with more than one stay the i w c do that very well may pass if they said the truck drivers and other people you don't have to pay overtime to but you have to provide them with minimum wage that's what the wage order says you have to provide him with meal breaks and rest breaks so that's where we're we end up now if the panel agrees with me on that and i think we're all agree with the way to order nine does contemplate interstate commerce then why don't we go to see what the bought of the washington supreme court did so we can i just pause on california part so if we agree with part of what you're saying at least so if we say for the work that driving in california you get minimum wage and rest break and we'll break protections it seems like the district court here believe that because of the safe harbor and because of what actually happened with the mail breaks there are actually wasn't a violation in california so do you need us to talk about what happened outside california for you to win on anything yet well we're going to talk about why he didn't win what the judge did got so confused on jobsite  heating credit any of our evidence the people in our case the truck drivers they would spend three hours washing their trucks they had to go wash your trucks they have to perform priest shift work in california but then there's the safe harbor so they're california has the safe harbor thing no they don't what happened was safe harbor rules two to six point two is what you're talking about that wasn't the law when we came around two to six point two was passed just recently what it said was during a certain time period it provides a safe harbor if you pay four percent if you know you screwed up under the blue ford analysis and i called the cardenas analysis because that was my case before bluford if you use a piece rate system and don't pay people for all their miles work and you screw that up we'll have a safe harbor provision where if you pay four percent of their wages we'll put in for this period of time not the entire point ok jane wrister court thought that the safe harbor took care of the minimum wage issues for the time in california and i don't think you appealed it i don't know where in your brief you say wait a second the court didn't get this right no no we did but we did appeal that part because what they said is that we didn't get our people couldn't even make the claim under the safe harbor because they were not employed during that time period therefore why didn't you tell us that in your brief we did we said that we don't we don't dispute that they were employed during the safe harbor period therefore that whatever they did on the safe harbor deals with employees who are not the people that we were representing does that make any sense thoroughly confused ok just what's the time period  time period i got a lot of cases you're out or you think you got a lot of ok well what i'm trying i thought just as judge friedman said i thought what the district court said was whatever the time period going back from the fin point that you're seeking relief from the defendant's compliance with the safe harbor provision here knocked out all of that all of the claims you had during that time period then for the post whatever that it's like a twenty six cutoff for any relief you were seeking beyond that to your clients did not have standing to seek to pursue the claim because they were no longer employed they weren't aggrieved employees for the period going forward all of that seem to me to be completely right and then i looked at your opening brief and as judge friedman said you never even challenge that and then in your reply brief the last page you come up with some reference to another case for why you didn't appeal it in this case and that doesn't really help you the safe harbor provision only applies for a certain period of time insufficient evidence to show that they actually work in california because they did not separate their time between california and non california time that was my second point with for the meal and and the rest breaks i thought i thought there was a holding that you had complied well enough either between the safe harbor or just in terms of what you told employees no they didn't comply at all what they did here was pay on a mileage based system a piece rate system they paid in forty one cents a mile no matter what they did the reason that that didn't comply with california law is that they only get paid and this goes to the federal average in your honor but i think judge watford was trying to understand earlier  truck drivers only get paid when their wheels are rolling forty one cents a mile when the wheels are not rolling and they're inspecting the truck they're putting fuel in the truck they're doing all the other paperwork that's required how can they make any money wheels are going they're making zero that's why that particular pay provision does not apply who is undisputed that's the way they paid their employees until september of two thousand and sixteen ok is what they then they change their entire pay system but before then what we have is a situation where there's no doubt they didn't comply with the law but that this your court thought that they've taken care of that with the safe harbor the safe harbor is in a  the say that in your opening brief the problem we have is i think you've waived any problem with how the district court resolve this issue if i think if the court takes a look again at the at the decision the judge made he didn't if he just said the two to six point two solve the entire problem that would be it case closed and send it home why do we need to talk about anything else that's not what he said i thought talked about that was for the again i don't have that in mind but it was like a post tw as to the first part of the claims they didn't separate their time from california so they're evidentially they did make a showing as to the second part of the claims there's a safe harbor for this part and as to the time after we made the change they were employed and that's how the judge got to the fact that it's a summary not a summary judgment this was a trial ok so let me just make sure i got it straight so you're saying the safe harbor protection that the defendant gets by making this four percent payment whatever it is make that clear if our briefs did make that clear i didn't think this was an issue at all quite frankly i thought the the decision was pretty clear on how it separated out but getting back to why the court did not apply our claim to the time our  driver spend outside of california the court said use the jobsite as test and said in our particular case our driver spent thirty percent of time in california twenty percent in texas another twenty in florida they didn't primarily spend their time any state and so according to the defendants we still don't know what state law applies so what the problem is what if we agree with you that they that you should get minimum wage just for the time in california i guess i'm not sure why you didn't have this it seems like then you do get into this burden problem of who shows what but it seems like the judge was struggling with the idea that you didn't really show at all how much you worked in california well that's what the judge said but in fact the testimony shows differently the good workers did all they could under andersen versus mt claim is it knows that the it's almost impossible for workers to determine on a minute by minute basis where they spend their time that's why he tells the employer they have to meet that requirement by recording all this time now if the defendant doesn't record this time which you didn't hear there's no way for a truck driver to know last tuesday what percentage of time they spend california versus texas or florida then they say a pretrial filing in which we asked for burden shifting under andersen amount versus matt clement's not only that and you just tell us where in the record that it's in the reply brief and i don't have the reply brief in front of me but in the reply brief we quoted we're the employer doesn't keep adequate records the reasonable less estimates of the employee out of control and our clients all testified as best they could they couldn't separate it into california not california which is not with the court that statement said we're going to file these motions the remedy judgeship said i don't hear motions in limine don't file that as we said ok so now what you want to do i can her be considered a waiver not only that but we brought it up in oral argument many times and in my closing argument i said they didn't meet their burden of proof because the reasonable estimate should control and there was no cross examination on my clients did you really spend the time washing the car didn't you everybody knows they spent the time working here in california the question is did they get paid for it and the answer to that is no make one more point about the dormant commerce clause i know i got to get out of here is that the people who defend us are talking about this as if it's to created unreasonable burden under the dormer commerce clause if we impose these regulations i think it's just the opposite i think what happened here is a perfect example you've got a florida company coming in here taking california routes there are california companies trucking companies trust me that will take these routes and do them in california but what they've done is they've come in here hire our california workers and had them do these routes and just because they're a florida company they say they don't have to comply with california law what does that d to the california employers in california who hire truck drivers bid on the same routes and have to comply with california law they have to pay when i'm wage over time wage statements everything else if the out of state workers are being treated differently meaning more leniently that creates a dormant commerce clause problem and that's why i think in this particular situation you have to say that the law applies equally to all of these workers if you spend with a it says it's ok maybe if you don't want to say they view it in a reverse storm or cars causeway but what i'm saying is that you can't under u c l our name to trust our great we've got to u c l claim here it be unfair to treat the out of state employer differently than the in state employee i think you're just a lawyer you're echoing the policy around that motivate the california supreme court decision is all about we don't want to create this incentive for out of state employers i get that i just don't think it's on the  miner honors richard wrong we're mendelson for indian river i'm here with brittany tours who please the court maybe just start by responding to your opponent's discussion with us about the fact of the safe harbor would very much like to first of all this is a pug action except for the two individual plaintiffs it's about paga and in actually just before i get to your question i wanted work in california work outside of california that was one part second bases and i'll read here it's on eighteen c safe harbor even assuming harbor provision in labor code section two twenty six point two bars plaintiff's claims period that's what i remember when it says that there was a period of action not covered by the safe but if you go did you twenty six b this is safe harbor provision and says i don't want to read the whole thing based solely on the employer's failure to timely pay the employee the compensation due rest and recovery periods and other non productive time for time periods prior to and including december thirty first two thousand and fifteen if my knowledge of were just reading yes so judge should write that the labor code provision to twenty six point two b provides that if an employer pays its current former peace rate employees four percent of their gross wages between july first twenty twelve and december thirty first twenty fifteen so is that was when the department of industrial relations was negotiating with big agriculture this was an incentive you only have to pay three now half years of liability but you get forgiveness statute what i look b what i was meaning from simply says time period all time periods of time periods prior to and including december that's what you're arguing here yes think you could have but you think we could have but we did not so to the extent that you have plaintive the two planes were the only ones who had claims for damages they were made whole were both received in the record they receive the checks so they have no claims there and as you noted show found that indian river provide rest breaks that's not contested and  it was not appealed so there you have the entire decision in terms of whether it's actually territorial or in california first of all we're not contesting in appeal that the time in california they should be paid for that was an argument argument was they should not be paid under california law for work done outside of california nevertheless we did pay them for it with the safe harbor for the very purpose that we don't want to end up here you know we thought we would pay them all you know extinguish that liability and we can move on  we might agree with you but if it does seem like there is still an issue as i understand it in this appeal because they say they should get minimum wage going forward for all the time these workers work because they live in california essentially and some of their work is in california so they want minimum wage for the time in nevada and colorado and wherever else and that i think they have appealed and that would still be in this case if we agreed with them no your honor this was appalling action it was in a class action so they can ask for wages for anyone it was simply to punish indian river for work that was done outside the state and to have civil penalties assessed against them that's all it was and so themselves they themselves had not been injured their pugging claims had been because they stopped working for you know that it's true they did stop working for us because the safe harbor extinguished their claim after starting never never never were yes yes that's correct and so in terms of the claims again this is pago isn't about the people the workers after january first because you don't have an employee they cannot represent those other and i don't think there's any contests to that well how do you understand what they're doing i have you know understand what's at issue in this appeal that i don't know and that's why i feel like i've been invited to the wrong here and because here we come and i love these i have several other trucking cases that involve all these issues i love to see the way it comes out and like to argue that but here for us we paid the safe harbor the purpose of the safe harbor was to save our appearance here we paid it there's no doubt dispute about that we were found to have there is a carve out in the safe harbor and that is for provision to rest breaks but judge found that we provide the rest breaks that wasn't challenge so now we're free and clear and yes we can if you want me to i can talk about extraterritoriality i can talk about bernie shifting and those sorts of things but it's really beside the point because we made these people whole per california law to twenty six point t failure to pay it does not have anything to do with the failure to provide the rest break i agree with that but they complied with the what rest break laws and i don't see any argument from you that that's wrong you know we did make an breaks what they did wrong was day did not separately compensate for the rest breaks and did not advise the california drivers that they could even take rest breaks they never even told our drivers they could take a rest break that's our our claim now judge shop the safe harbor will get them out of not paying them but you can't get out of the fact that you don't even explain the wage an hour lost your employees that's a violation of itself and that's what we're talking about so i think we do have a live case here i don't see what is it that you think you get to recover after they've made the safe harbor one hour penalty say far penalty does not immune him immunize him from everything it only immunizes if you fail to pay it doesn't immunize you if you don't if you fail to provide or discourage or not inform is right there in a two to six to six point two that was a compromise with the legislature if you don't advise your people that you have you have the right to take a break you can do the safe harbor rule but it won't it won't immunize you i think you're misreading the statute i think it was the employer of the civil no no only and only in the instance where an employer fails to pay not where the employer fails to provide in other words if you if you give your  employees a rest break ok but then you don't pay them for that rest break in that situation it didn't take the respirator i mean i i think understood that these employees knew that they could take respirators no wait what happened was is there was all the evidence and at trial it's undisputed even their witnesses came on on the stand and said we never informed the our california drivers to take rest breaks because we didn't even know about the california law but there we know that they didn't take rest but we know they didn't you don't pull an eighty thousand pound truck over for fifteen minutes or ten minutes they all testified we never took a rest break and the reason they took another reason it didn't take i see the testimony in your brief which is like the company didn't edgel rest breaks forth can you point to something that we didn't take a rest break well their testimony says that the transcript and i think we cited to it certainly in the excerpts of the record we asked him point blank did you ever take a rest break he said no i was always on duty because when you have a truck you have to maintain the truck there so the guy said i think barrier said i couldn't take a break and less on discharge of my duty of looking after this truck my responsibilities to always stay vigilant be with that truck all the time and so there's no way they could possibly take a break when they did the safe harbor provision that gets rid of pain for the breastplate but it doesn't and i would employ you judge w you take a look at two to six point two at the very bottom and i wish i had it i should have it but at the very bottom it says it two to six point two does not apply if you don't provide the rest break if you don't inform the employees of the rest break and i argue that as nazia at closing arguments there is no waiver of that so unless the court has any more questions i think were let me just point me again to the provision you want me to look at it's at the very bottom of two to six point two at the very bottom it