fluctuating work week isn't it it is not the only question but it's the main with it's annoying question and it's a little unique in that the cases that the court has considered in the past haven't really dealt with fluctuating when it's a fixed schedule that they can look at and know for the whole year when they're going to be working it to each other a fixed by weekly schedule or it's a fluctuating one week schedule isn't it in the way i mean that's but i mean those are different i mean that's an either or that's that's a question for the court to determine i mean they they're the the plaintiffs understanding was clearly that they're going to work at thirty six hour  does that that was their schedule and we don't we don't have any disputed facts do we this is judy's a purely questions of law and summary judgment on that point however i would agree with that but for the incident had occurred at another facility with the black and white contractor which led energy to bring decide to make the decision to bring the security force into salaried whereas historically and some of the people who worked there for over twenty years on the plaintiffs had been hourly so their history is for hourly pay did he knew that based on the force on force real that demi's going to be a lot of required overtime of these people he also knew that the n r c was going to implement  rules beginning around october this is in two thousand and nine so and we're talking about in the spring of two thousand so he and the human resources person for energy developed a method of calculating a salary and what they did in wise and he clearly testified to this he took their hourly week and then he added into that the bombers that they would be getting as salaried employees which he told them would be approximately fifteen he had never seen him in the less than going to be a lot of the upcoming additional work time required and the fatigue rooms are going to be implemented in october he didn't expect according to his testimony that they would be able to remain with him in even the fatigue rooms until about october meaning they were going to be working perhaps more than seventy two hours a week forty hours a week multiply that by fifty two came up with two thousand and eighty and took their salary and divide that out and that's what he gave them as an hourly rate and so that's what they believed to be the case but that doesn't comport with how he can tell collated their salary knowing that they were going to be at least two and probably for a while at least in violation informed only the fifty meaning he's telling them your salary is going to be based on the forty hour week of fact beyond what we were talking about the you can read a poem i have a few facts about that if you're done entering there i'm on what you just said about the hourly rate if you use that hourly it with the hours and you all have argued should have been paid and you part of the time and i have over time and all of that what is that dollar compared to the calculation that was done for purposes of this  missal how do those numbers i'm just wondering what the math how does the math compare i don't think we've done ok so we don't know we don't know if that changes the outcome ok then my other question is  should have been paid but rather what this number is that you're now arguing that the company calculated is an hourly rate that was represented to them how it was what would happen if you would use that as a static rate not this dynamic fluctuating thing but  static rate multiplying all hours up to forty a week at the rate and then time and a half or the over time what was in that number be that was my question and you said i thought that you didn't know  then my next question is this june fourth two thousand and nine letter that was signed by about twenty people including yes that was my question was it only nathan hills and luke did not sign it was not at th what he'll sign the letter how do you get around what's in the letter i mean putting aside the issue that judge smith raised about the fluctuating week being thirty six to forty eight even if we accept that that's not a fluctuating week this letter shows that they knew when they started that they were going to be asked to pay for more they like it they wanted to be to work more hours and they want to be paid for that paid more doesn't that show at least that is to hills well  they accepted the around the first of but of course you're working at waterfront three they know what's going on so the accepted the job then they see for a month what's happening and then they sign a letter on june the fourth and they've had a couple of days to see how they're being treated and that's what leads to the letter it's not the fact that it's not in a vacuum from june to june for it's think this reflects only three days of learning and economic job because it says do you need nuclear regulatory commission it's a time supervision will have to fill positions normally manned by early security officers supervisors will also be mandated to fill vacation and another i've got to mention he didn't tell them that they would be filling in prior at the time the job offer he didn't tell them they would be filling in for nonexistent security officers who were hourly and subject to union work so i just don't but but there's another point there if you think about it energy is trying to say that the fluctuating work we can plot and what we but when they asked the energy representative what does this mean to me how early he gives them an hourly pay if you think about that there's no way you can  an hourly pay but that number is based on what was a number i asked you about earlier on the map and where what is that number based on how many hours was that calculation based on forty hours i said it was a seventy two he was telling them no maximum or week and lead under the fatigue rooms when they ask him what's my salary he takes forty hours and doesn't division and that's a very different number for example if you take that to salute well i think the the number that mr andrews used was sixty nine dollars and if you take that at forty hours seven hundred something hours so that's that's how how can they have a meeting of the minds when he's giving them an hourly rate that is totally different from what he knows is them so what is the right rate for them to be like if we were to remain and now that trial whatever what is the right rate is it the seventy two hour wait is it the forty hour raid is it some other is it minimum wage is it what is it you mean to take their salary and base it on how many hours well i mean i don't know if you got to the last argument but there was discussion about what are the damages and i'm asking i'm a calm essentially asking that question is a different one and i asked before you now told me about three or four different ways a package like the hourly rate which one right i'm telling you exactly what mr enders tell me you did and what he did was very clear ok but which one is correct which is the correct way to do it i guess that's why where a thirty six hour one week and a forty eight hour the next week and so that's what eighty four hours every two weeks pay period and that's what they were agreeing to so two weeks of salary divided think we can i can i disagree with the way home mr cantor describes how that initially set initial salary was put together they did they tried to look at what the people had been making at one and her and come up with a salary that would be failure based on what they had been earning as hourly workers before they brought them in house as exempt because existing security supervisors at other plants they were hiring them to into an existing job that was treated as exempt and they were trying to get these people sort of into the market level salary and also how to keep them paid about as much as they were before for wacken hut so that's how they came up with the salary and workload didn't really change there were fatigue rules those didn't change around that time the people were doing similar work at work and hurt in terms of the level of work they had to do as when they came on board interview so you are right in the letter where they complain about the workload it was because of what they had been experiencing prior to that time didn't suddenly change on june first when the transition of power but it isn't just objecting to have it and to be paid for it it's evident that they knew at least hills think mr sanders deceived them or meant to or tried to what matters is that there was a salary that was offered to them and they accepted it knowing that it was a salary and then they were not going to get overtime that's not actually our case because that actually you didn't get so case is you have to win that it's a wash or any workweek right and then you have to win this bonus offset and then as to these two people which is all we have in front of us then they don't have any damages because of the of the offset the fact alone without any other evidence of a thirty six then forty eight and thirty six than forty eight if that's the only evidence we had is that a fluctuating work week i think so and the guy who did it is but that is not  can't read the record thirty four thirty four when you applied for the job did you understand that you no longer remaking errantly you get it and i saw you do understand that but we were short handed we took the i understand the job with the understanding that in getting these positions there would be no more working overtime that was supposed to do away with that i would have put as working a normal forty hour work week without any additional time that doesn't sound like an understanding that oh i'm going to sometimes fill in presumably believe it does when you take that his to testimony in totality that he knew there were he knew there was that they were short handed he knew because he was an officer he was working there he was working with the supervisors he knew the super supervisors were working extra shifts so when he took the job he knew there were extra shifts he knew he was going to have to work on that he knew they were trying to hire more people including him to alleviate that right and that if i may just finish this thought so the i think they knew they were going to have to work extra shifts they knew they were to more than the base it was more than they expected it and the law on this circuit is under ransome is clear that in the district court held this i don't think she loved it but she held it that working more than you thought you were going to have to does not take you out of the fluctuating work we calculate if you knew your salary was all you're going to get no matter how much she worked and that your schedule was going to vary which they clearly did then that's all that's requires but i mean ok so maybe there's a different part of the record than the one you keep citing to because what you keep citing to is basically this stuff where they go well we thought we were going to be working overtime for thirty six in forty eight and again if that's enough to be that's enough but if it's not i'm not sure you have the plus plus let me go back to the thirty six forty eight for a minute they were three shifts one week and worship ships the next as one of them the minimum usually although there was some variation to that it times those ships were all just twelve hours so it's not exactly thirty six forty eight in other words there's some pretty ship work and some push ups so even within the thirty six forty eight you know they were supervisors they weren't just clock in in an hour they were there you know more than thirty six forty eight even on that day shift and again if you look at their if you look at their testimony what they're complaining about is as we had to wor more than we thought we knew we were going to get a salary we knew we were going to get overtime anymore we were near enough to have to work extra sometimes it was just more than we thought more than we wanted more than you know we felt like doing you know in that and that does not take them out of the fluctuating work week around under the sports cases such as ransom but i mean unless ok so let's assume argue endo that we do not think that at thirty six forty eight by itself is enough  is this is this is that the testimony all keep coming back to i'm not seeing that he's saying he thought they need let's say they needed three more people now they've hired the three more people he thinks they're poor there will be any more overtime how is that showing that he knew there would be over time what he said was when he was hired they knew he knew they were short handed you know they were trying to harm more people but you know for whatever reason it didn't completely alleviate the problem but i think he knew starting down he was going to have to work more than the base ships i think that's what his his saying we were short handed and when can i just say this too i mean ransom suggests that you can look at sort of the everyone just on account of the collective weight of the testimony on this point but she did and she poured over every bit of testimony from every plaintiff and found that each one understood the that they were going to have to work more than the basic schedule you know she said that and the hearing and like i said i don't think she liked them very much she might have thought it was excessive but you know she said that in the oral argument and in her and  know what handlers told them that well well well we granted no no she did not mean to interrupt you but on the on sixteen plaintiffs even and even luke even some who said they didn't understand it she poured over their testimony and said i think they really did it they might not win admit it now you know but i think they really did you know she looked into it all the deposition testimony the complaint letter and so my dad was the parity six forty eight by itself that wasn't this extra stuff no i mean the the evidence of the thirtieth of more than thirty six forty eight was in the record also we provided a chart to the judge that had you know that mentioned all of that and own i'm not i'm not shit you know and perhaps the opinion could've been all of their about it but if you look at what happened at the oral argument that was definitely discussed and that's what that's what they were really mad about you know is that they were you know starting out in the complaint letter they could see that it was going to continue to be what it had been you know everybody was out there had to work a lot and pretty hard and they were paid pretty handsome lee for that i might add and she and and they just you know became tired of it over time as well how do you answer well they seem to be tarred immediately they wrote this letter well that was that was basically i mean they didn't write that letter on the afternoon of journal june first the day they started you know that was you know they knew what was happening because they were there they had been working there for years and how do you answer his point about they were told that even though the guy calculated based on the seventy two hours they were told you'll be essentially receiving you know thirty dollars an hour why is 't that the number we should use for assessing all of this well because the choices really are our urge to you know there's the fluctuating were great way of doing it where you look at every week's rate of pay or the time and a half way of doing it if the fluctuating work we've done apply and so all of all what he's talking about is and as i say i don't disagree with i do disagree with the way mr cator described it i think what mr enders was trying to who's come up with a salary and explain to them how he came up with that because they were being changed from hourly to salaries but the way you calculate over time where you've got  on a salary and a fluctuating schedule is the fluctuating workweek matter what you're talking about as maybe some other hybrid method that this court in the party city case was told matched right there you couldn't do you know you can come up with some sort of you know i'm going to say for why wouldn't you enforce the deal you got which was three hours and hour and then there's overtime you multiply that's forty five dollars because that wouldn't because that wouldn't that wasn't judgment as a sixteen including these two on the fluctuating work week issue we think that was exactly correct and then the offset is another question altogether really i think you know mr caters  into the fluctuating workweek method and frankly that's kind of a measure of how generous the bonuses were and that's why we're here because they don't have a just just a shovel claim her time with that word and therefore there's no subject apply their salary to that come up with an hourly rate and then for the hours over forty you pay them half of that because the fluctuating work week says you are even paid straight time for every hour no matter how many there were so for each of these people we've done that and i'm sorry i just don't i just don't want to have it not it's in our it's in our it's in the charts in the briefs what it would be what if we disagree with  salary it wasn't expecting any overtime and he knew he would be required to work the thirty six forty eight hours schedule plus whatever overtime had to come in for so i think that's her desk typical of what the right well and i guess i'm concerned if we well if these people ultimately we had in in are proven to be i don't i mean think winning begs the question my question is what is it we're talking about and you're talking about assume for purposes of deciding if they're not exactly right yes or if that if they succeed on that question how do you calculate their over time via the fluctuating workweek or otherwise and s and if i may just say about the about the offset we haven't got to talk about that very much we think that that offset is right in line with the fifth circuit cases which admittedly starting with heard have some disinclination to permit appropriate where the amounts paid are inappropriate and we think that's what we find here because the the so if these people were classified as management that's the only reason they got the bonuses if they are would like for you to think about when you consider this case how these employees could not be totally confused when you told them that they were going to be because they just didn't have the manpower they all said they knew they were getting a salary they didn't know that they didn't know they were going to sell right by its by its nature you're not punching a clock when you get a salary and he's if i take a job as a lawyer i get paid two hundred thousand a year acting it was hard work about two thousand hours that's about one hundred dollars an hour but i know there might be weeks that i'm working night and day and there might be weeks where things are slow i don't have any business and i was kind of sitting there you know reading sealy papers but they never caught him punching a clock every day there's an absolute record of all their hours and he's telling the same that is contrary to the salary point and therefore they didn't understand they were getting  i mean it is seems like you should have at least done the map on what your guy's claim they are and they're all it's just weird to me well i mean we haven't gotten to you know we haven't tried the case we haven't gotten to the classification we haven't and i mean i can tell you based on i don't know the precise number but based on his calculations he's he's expecting three thousand seven hundred hours of work a year and they're expecting two thousand eighty hours of work here and that's a big difference and it's warmer here and we're just working them abusively the other time was incredible and i'm not arguing that it was more than they expect and they expect i mean it was looping to be more clear he said i expected work thirty six hours when we forty eight the next and that's why i took the job and it's in the record that when they didn't live up to their into the market he went and took the job making sixteen dollars an hour and with the overtime he made at fifteen dollars an hour it was more than his salary mustn't cut us so yeah that's what he said all the knowledge that they had from latin to energy because they're going to work for new employer with new personnel who are in charge and they don't know what the staffing is going to be they they believe that the employer is going to take care of that seventy two guys what do you and what do you do in a situation this is just hypothetical i'm not your case necessarily what do you do in a situation in which the employees duties and responsibilities are not those of  of an example person or a supervisor but when they come to work for the first day they and the employee everyone agrees you're on a salary what do you do about a situation like that name floyd says ok we're in fine you're on a salary and you're working you know eighty hours a week and you're not get any overtime because you're on a salary i don't think you have any recourse if you he said are you don't have any recourse yeah i don't i don't think i don't think the employee has any recourse if he agrees to work an unlimited number of hours in the employer elects to abuse that there and he's he he his choice is to either work or quit and that's what