alber a lot of things changed into one of the biggest changes that are on june sixth two thousand congress enacted a technical correction council so it so you are conceding that or two thousand and these that of a driver driver how her lower or mechanic that performs work on vehicles weighing less than ten thousand pounds based on the it is clear that were delivery drivers with this they used their personal vehicle to make their deliveries approx with seventy percent to ninety percent of all of the council under your theory of the case here in two so comparing operating small operating smaller vehicles so comparing that circumstance that masters it's crystal clear is a pilot's believe that they have stated a point keep in mind the third circuit stated specifically that they do not even  jurisdictionally it understood that in two thousand and five it could suddenly given one category of people over time protection and it wanted to maintain that status quo as to those people people who had become eligible for overtime protection in two people to maintain their overtime then i guess why is that nothing more natural reading of what happened or the fact that more natural even because you really look at the language took the stand i am looking at the language and it uses the same language that congress and the regulations have used over and over again to refer to mixed indians employees so i look at this and i say they're saying people who drive small vehicles as part of their job they may do some clerical work on the outside but if they drive small vehicles as part of their job that's th overtime or now fall under that so the way it works and i'm sorry i will let this go i really am trying to just as a matter of common sense an employee with mixed duties say an employee who spends ninety percent of his time driving large truck and ten percent of his time doing clerical work that person is going to be covered today by the n c a a exemption great but if he spends ninety percent of his time driving a big truck ten percent of his on driving a car that's suddenly going to make him eligible for overtime because he spends more time riding on the road in the safety and put it a task that takes him out of the motor carrier exemption as he drives more and puts him under overtime that's why doesn't make vehicle that even if you mostly drive a big vehicle so that you are clearly under the m c i exemption for all your the ninety percent of your time that's driving a big vehicle if you spend the other time percent of your time tighten you don't get overtime but if they can get you into a this time that they spent driving smaller vehicles was just a small faux senate even with this the or it really focused on the core of his heels opinion and with that decided based on the playing statutory language that those employees so if you were to prevail on the f a sell a claim tell me what that does here marilyn klein if anything it is based on that is was consistent with this court because the provisions of america wage now are locked mostly relying on here  overtime because the mc exemption which for safety sakes makes drivers of heavier vehicles always subject to partner transportation regulation and not subject to the f l s considering contrast another driver who drives exactly the same  truck interstate word is a week eleven hours a day but on the fifth day instead of taking it all he drives it later truck for some part of that that day despite the two drivers presenting identical safety profiles risks from driving  if congress should choose to cover the individual on second scenario they certainly have the authority to do that they do you're certainly have to make sense to the wider world or the other interpretation that we propose it is reading beat to mean affecting in whole or in part the safety of operations of motor vehicles wholly wing ten thousand pounds or less there are two separate component it applies to two way and its application to two ways clear there are four functions referred to in it being a driver a driver's helper a loader mechanic and one can do that you know or are you part way toward being part as affecting the safety of operation of motor vehicles as a standalone concept and under the regulations in the cases up until the russian acts passed that was a stand alone concept that it's quite common situation where you've got your doctor language that modifies later language if you've got a collection of nouns were verbs you can infer that that introductory language modifies the nouns verbs as a collection but if not you stop with the nearest another job aspect that needs to be present purpose being accepted from the exclusion and that's performing duties on motor vehicles winked and thousand pounds or less and that the in whole or in part language in part some part two that begins all this does carried down to it and that reinforces our reading that we are to be exclusively and so three under your theory that's correct who performs duties exclusively on because the in whole or in part concept isn't taken down and with a warm heart stops or two and that again reinforces our construction of our b and stopping the application of in whole or in part simply to affecting the safety of operation read that that was case what was the purpose of the two thousand and eight switch in two thousand and five the secretary of transportation has jurisdiction over trucking had been limited to commercial vehicles which were vehicles and thousand pounds or over ten thousand one pounds and over congress realized that that was problematical work various reasons and restored the secretary of transportation and jurisdiction to all motor vehicles irrespective of weight in the two thousand and eight legislation and that we think was a critical orsen of another brother things that were involved in that two thousand and eight simply reincorporate the status quo with respect to your weight in the two thousand and eight legislation and to make it exclusively driving trucks ten thousand pounds or less for e driving here trucks and because that's a problem it was frankly a cop out for the third circuit and not address what in our means and to realize it can mean very small which raises problems for their interpretation bearing a number because either has it or it doesn't my point here is simply there's nothing about the grammar or the logic of the layout of the statute which is inconsistent with our reading that says that it or art only refers first f concept several of which do not carry that prefatory knowingly down the whole predicate of the statute particularly with respect to things like minors ages if that's an element of the subject the regulation of the department of labor with respect over time and that our transportation respect ours likewise requires not reading the in whole or in part prefatory language as reaching the weighing ten thousand pounds or less language and really yeah but it did early that's correct but if you're in a mixed fleet situation if the driver drives heavier trucks at all over a diminished level that still a larger it goes the other way and i think it's ditch harris was referring to earlier it makes sense to be carrying over that kind of test from regulations huling with mixed activities as judge  driver is simply subject to being called on any given day to drive here your truck that's enough we think that is the test and that also is consistent with department of transportation regulations at forty six federal register three seven one zero two  a maryland way jack basis for the claims because the general direction the next wasn't included in that statute and the motor carrier act exemption lied under the historical interpretation of its operation clearly to what the pelly had to resort to we think this is the test this is the possibility look what sources that he was forced to rely on want this quest in reference to at the grammar their own opinion on a lot of very solid overtime so but based on that with that facts i still believe credibly important to point out that that may be a way to distinguish it on the facts but all i'm saying is that it's not really was sorting to some crazy source when you can cite a very solid pelleas inability to accept the law has changed it's not validate about fence in this matter and therefore the district court's opinion must be reversed thank you thank you very much  we're going to take a very brief recess after we come down