court i'm thomas burns and i represent jennifer jenkins this is an overtime case between a paralegal in a law firm and at the district court committed a manifest error of law or fact when it overlooked or misunderstood the regulations defining what counts as work and what is a work week and the week that we're talking about in particular is the week from sunday may nineteenth through saturday may twenty five two thousand and thirteen which is when the a p p trial took place the regulations make clear that weighting is working and the specifically i'm talking about twenty nine c f r section seven hundred fifteen which defines on duty and it says that the question is whether an employee is unable to use the time effectively for her own purposes and it gives a series of examples such as this do not refer reading a book while waiting for dictation messenger doing a crossword puzzle waiting for assignment factory worker talking to his coworkers while waiting for machinery to be repaired  and then a related regulation is section seven eighty five point one nine hundred eighty which defines meals and that it says the standard is whether the employee is completely relieved from duty during the meal and it gives like a little bit more flavor to that it says an employee is not relieved if she is required form any duties whether active or inactive while eating and interpret ing these regulations this court held that and call hime against glynn city a all firefighters who are eating meals that they're not really from duty during their meal times so that counts as work and it needs to be added up when you're doing the overtime calculation here the facts are that ms jenkins mr anton and the expert were discussing the trial proceedings the entire time joining the lunch which took which was an hour and a half each day and in fact ms jenkins testified that they were at the facility from eight am to five pm each day which is you know a nine hour period of time and then the order the district court says well that doesn't count as a launch because he didn't identify any work you were actually performing that's that's not good enough you need to be more specific and because you didn't you know just chit chatting about what's going on doesn't count as work therefore i'm striking that time that that ruling didn't take account of these regulations or this court's decision call hime against glynn city and that's why it's legally mistaken so what do we do from there i guess cole haan those a little bit different right because in col we said that the the firefighters were subject to significant affirmative responsibilities during that period and i know and what more is there really on this record in terms of significant substantive responsibility other than as you say kind of chitchat there in force and there's very little in this record about what was taking place what mr anton the lawyer concedes is like what we're talking about the case but he says it wasn't really work ms jenkins says we're talking about the case the whole time and that's kind of this unclear evidentiary situation that we're in from my perspective is the only reasonable inference that i think can be drawn from that is that that that's actually work they're talking about strategy they're talking about what has taken place and then what's going to take place in the afternoon session so to me it sort of beggars belief to think that that couldn't be considered work and really the question isn't like what was accomplished it's more about was ms jenkins compelled to be  there you know there could have been a situation for example but in the same way you think that perhaps my law clerks feel compelled to eat lunch with me just because every so often i would do that myself when i was a law that that is definitely history although it's a very obviously enjoyable experience to learn the judges but they're talking about the cases the whole time i can assure you of course but the questions really compulsion to be there and here you know you can imagine that there there could have been a fact where jackson we're going to lunch you're free to go and do whatever you want you i'm just going to talk to the expert you can be here if you want or if you want to go off offsite or just eat somewhere else that's fine then i think that time would probably be considered a bona fide meal and shouldn't be counted toward overtime but we don't have that fact we just have this object general agreement that the case was discussed with the expert to me i think the only reasonable inference at me drawn there is that's work and so should be counted toward the counted toward the overtime calculation and then an additional consideration not only you have that lunch sandwich in the middle but you've also got the book ends of getting to the facility before and after and perhaps that should count as overtime as well really the question would be what's what the appellate relief that you could you could order here you could you could vacate the judgments a district judge there are these regulations out there this is what we held in this one case and please do the analysis in the first instance and then you know if there's another appeal we can we can take up the issue then and actually when i should point out remember that the district court's not completed the entire analysis because the get to the commerce clause question so you know no matter what appellate relief you were to order here it couldn't be to reverse the judgment and order the district court to enter judgment in our favor it would just be like a district court like finish the you know we're  the judgment please finish the analysis so where does that leave us a it could leave us where the district court would say well from tuesday to friday that's thirty six hours if you count the eight am to five pm as for us the problem you've got here is the findings of the district court makes of fact how do we deal with them you've got a square finding by the district court that it's now and sounds testimony to be more credible and the district court offered a number of reasons for that including that anton's testimony was corroborated by a shaky and need  and so on that basis the court no matter how you come at it concluded that jenkins had not met her burden of proof that she indeed worked more than forty hours in the given week and therefore was not entitled to overtime compensation isn't the case if you scrape away everything as simple as that i don't think so i think of it i don't know what i'm missing ok i think that pertains to the entire scope of her work for the thirty six weeks and he says while i find these witnesses more credible than these other witnesses when i talk about this one particular week for the a p a p trial i think the judge carved that out and looked at that with more focus so i think there is some general agreement about what what the when clocking in and clocking out was taking place and then the question really is just like what is the law say about those caught right now but basically the district court said she just didn't have much to do it was a simple as that and if you want to know why i didn't have much to do i didn't have a lot of cases in the inventory i didn't have a lot of work and so it's no surprise that i had no occasion to give her a lot to do here or the number of cases it set her and center of this is what i did and look at what these other folks said to write a couple of issues i think that i'll grant you that stated not in a granular way but it painting with a broader kind of brush but i'm still asking why that isn't enough to sustain what the trial judge did after a bench trial write a couple of i think that's conflating the idea of billing between working and it's overlooking this part about waiting is working under the regulations so if a paralegal is just sitting at her desk doing nothing she's working because she's waiting for her next assignment the fact that she might not be billing all those hours that's you know perhaps an unfortunate business practice for the law firm but i'd suggest that she was there from nine to five with a time clock but it certainly bears heavily on whether she had occasion to work beyond the normal work hours in the day if there was nothing for her to do yes it one might reasonably infer from that that she won their overtime if she if she was there from nine to five and didn't have much to do when she turned around and said oh i had a whole lot to do when i was there extra i might infer from how little that was in general that she had no occasion to work overtime i don't think that's a reasonable inference that i know that a couple of reasons again that the schedule was eight thirty to five fifteen so that is eight point eight hours multiply by five days that gets you to forty four hours if you subtract lunch which she claims that she never took but she was it at her desk that still put you like around a little bit over forty hours and then she's claiming that she's working you know in  the evening now granted i think that would bear on the witness credibility if you believe that there's not very much work to do in the law firm then you know why are you working in the evening i think that's an appropriate consideration but and we disregard that the trial court obviously did not believe or credit her i think or was he not clear enough about what he thought i think it's essentially a harmless error analysis that i think you're talking was because you can't like what i'm really after and us even if you're right about andrews so why why would it matter here i think given what we have factually i think it would affect his determination of the credibility of the witnesses so you don't have like a proper district court ruling to review here because he hasn't done the analysis in the cry correct way and sort of an analogy you might draw is like a procedural error in a criminal case on a sentencing issue where the guidelines were miscalculated you say well you know the judge did this and here's his ruling but he didn't calculate the guidelines correctly so we're not really sure what his sentence would have been had he done it correctly we're vacating the judgment district judge please do the sentencing analysis with the guidelines calculated correctly the only kind of way that the judge gets out of that in that circumstance is when he says i'm going to sentence this guy regardless of the guidelines to you know one hundred months or something and then you know all the errors is harmless because you know he said that regardless the guidelines he would have done whatever so i think you can't divorce the legal standard from the factual findings and that's why we're asking you to vacate and and remand for the judge to finish that analysis i want to make a point then about the the work week there's a legal argument a factual argument that i have here the legal argument is that i think the default rule under  section seven seventy eight point one zero five is that it is a counter week unless the employer sets up something else and that's essentially a plain language argue argument that i have that based on the language of the regulation  obviously whenever the employers that's it that's that's what it is an employer can set it explosively or implicitly the record here i think it's clear that it was never explicitly say that because mr anton adopt one twenty nine page thirty nine said he was not sure whether we had a you know a regular work week and then i don't think it's at least as defined by the record because the pay stubs work twice a month rather than bi weekly so that's not prima fascia evidence of what the work week was so how do we get from you know sort of not clear plus not clear equals clear error that's the mean that's the difficulty that i'm having i'm i'm that's why there's a legal argument and a factual so the legal argument is the default rule under the regulation is it's the calendar week unless there's explicit or implicit evidence that the work week is been to be something else by the employer and then i'm saying there's nothing in this record or that the judge has misconstrue or made a clear error and interpret into evidence because you know mr anton himself said i don't know what it is and that the pay stubs don't establish what the work week would be so that's why we're we're taking that that position and so you should for the a t p trial week can it sunday through saturday ask the judge to reconsider in light of the with the regulations defining on duty and meals and so forth and then have him make a finding of fact as to the amount of work that was performed on monday because all the judge said it was it was extensive but he didn't say what it what it precisely it was and then once we know that the rest of the analysis can take place thank you for the work week argument your honour's is one of the things that kind of concerned me in the appellants answer brief and it concerned me because of the way twenty nine c f r seven seventy eight one hundred five years portrayed  it was portrayed as saying that it didn't matter which day it began on so long as the employer establishes something different that second part which was pulled out of thin air twenty nine c f r seven seventy eight one zero five doesn't give any preference to sunday through count through saturday monday through sunday jews day through monday it's all that it's all the same  what we have is and i can't remember the case that i cited but i cited it in there that the prime the facia pay week coincides with the work week and we have evidence that the work week began on monday and that's exactly what judge moody used in his in his findings saying it's been established  work week began on monday therefore i'm saying that the pay week began on monday what's what counsel is trying to do is say that because there's no evidence at all on the issue they should find you should find in favor of his client the burden a trial is going to be on ms jenkins to show each aspect of her case and if one of the aspects of her case is going to be when the pay week starts that's something that she should have addressed addressed through mr jenkins there is no testimony on that the court recognized that in fact at the end of trial after everything was done the court even and i believe it's in the record i asked all the attorneys whether that was even mention and everyone said no so the fault it's a factual issue this entire case is basically a factual issue it was a bench trial counsel for plaintiff asked for it to be a bench trial i agreed that it would be a bench trial and the judge made factual determination lunch this court in call hime and later in avery said the basically the same thing that what matters in a middle period case is whether the employee is subject to real limitations on her personal freedom under counsel's viewing of this case any time a supervisor takes somebody to lunch or even any time coworkers go to lunch together if they talk about work at all it becomes a working lunch you know that kind of throws the whole idea of lunch on its head what are you going to do prohibit your employees from going to lunch with each other because they might open the door talk about lunch and then all of a sudden i mean talk about work and all of a sudden it becomes compensable hours it mentioning what has been happening for the last three hours as a topic of conversation that's natural and that's exactly what the judge found the judge in his in his order said pretty much the same thing there's only one subject of conversation that everyone's going to have in common it's talk about what happened earlier  that doesn't mean that your sitting there strategizing everything else in fact mr anton said that that wasn't what was happening ms maybe ms jenkins said that it was but quite frankly the court again did not find mr jenkins testimony credible at all  even with the lunch that we're talking about arbitration it was three and a half days of the arbitration during that week two three hour sessions and the break time for lunch was an hour and a half of the lunch was was probably more like an hour even if you added the lunch to it you still don't get to forty hours of actual work  time i counsel saying that maybe we should look at getting to and from the workplace but i think that that's pretty settled that that's not something that you do it's not counted as as a work ou r that the court reached its conclusions based on what was presented before the court as far as the  no records being kept one under the c f r regulations if you have a set schedule that takes care of the record issue but more importantly even if records were required to be taken to take you know to be kept it's a two part analysis by this court this court has said that first you look to see whether overtime was worked if you reach that conclusion then the next step is going to be to see how much overtime is worked if there were records kept there is a lack sing of that requirement for the second step this court the court lower court found that that first part wasn't met we didn't even the judge didn't even have to get to the second part because the second part anton len well basically the testimony of everyone except for the testimony of ms jenkins that there was that there was no overtime work there was no need don't know what to say about credibility issues that is that raises an he makes a slightly different argument that you might want to address he says that mr burns that the district court failed to apply the burden relaxing framework laid out by the supreme court in andersen and that in so doing the district court committed an error of law in so far as it went about weighing the evidence of whether or not mr jenkins worked overtime you responded that it doesn't really matter what standard the district court applied because the conclusion had reached was a plausible evaluation of the facts measured against any of the standard i understand that my question but that framework is did the district court error in failing to apply andersen can we tell from what he wrote whether he did that or not yes it's my understanding that andersen gave that two part analysis and the two part analysis and i'm asking is did the district court violate endace and no no your honor and we were not because anderson says that the first step is to to find whether there is overtime worked and then there is a relaxed standard after that to show the amount of overtime worked the district court made a ruling that there was no overtime work during that time period or any time period that that ms jenkins worked there  therefore there is no getting to the second step of the analysis that that anderson set forth so yeah but what i'm also saying that even had given her the benefit of the doubt on the number you know of precise hours the fact is that there was enough in the record to show that that this jenkins quite frankly didn't work those hours didn't come close to organise hours she came into work the record shows that not only she would come into work she would do her school work at her desk she would  do other things other than work at her desk the record also was that ms jenkins said that she wanted to stay later sometimes because she wanted to work on her schoolwork afterwards and mr anton let her have the key so that way she could do that that certainly not work for him or anton legal it's for herself she wasn't required to be there she wasn't performing any work duties he gave her a chair and that was about it on the record your honor that address that issue i think that's all i have your honor a couple of quick points with respect to the work week mike my colleague and the district court say there's evidence that it began on monday i don't know what that evidence is so it when you write your opinion if you conclude that please tell us what that evidence is on the the lunch issue i think my colleague has misunderstood my argument about employees going to lunch together the question is not what whether they're together it's not whether they're on the work site it's whether they're compelled to be there and i think that the only inference that can be drawn from the set of facts is that this jenkins was compelled to be on site during the lunch and if that's not a reason when friends you ought to vacate to the district vacate the judgment remember the district court and say we'll figure out factually what happened was she compelled to be here or not and then judge marcus you had a series of questions about the andersen decision i think there's there's to split it up there's two questions like one was it applied and second was it harmless i think i'm sorry we know he never mentions it but he doesn't have to mean never specifically cites to anderson he doesn't exactly and i think it was when you folks submitted your proposed findings of fact and conclusions of law i take  cited today anderson we did not i don't think i looked through the render you were in for a trial or a but i was that cited by anybody i looked for and i couldn't find it but that's not the preservation problem for us because there is an eleventh circuit case called secretary against united states department of labor against preston footnote five it's a twenty seven team decision written by judge knew some parties can most assuredly waive positions and issues on appeal but not individual arguments let alone authorities and i think the argument was preserved by record cited it's like pages seventy and seventy one i don't see where  but i have my notes by things page seventy and seventy one of the fifth day of the bench trial believe that's like dock one thirty or one thirty one and that's where ms sass is making the argument there's a burden shifting here she just that she doesn't cite anderson but she's making the argument i think