because it seems to me your approach to this proceeds on the assumption that simply writing a letter in a fair labor standards act case saying i want to opt in is enough to make individual a vs be lawsuits either but the practice in these cases of conditional certification nowadays is well established and that step never happened in this case so given that and actually given the footnote that they just record drops saying well since i'm getting rid of this you know on the individual claim of the request yeah a footnote to the plaintiff's motion to conditionally certify collective actions denied without prejudice is moot i don't understand why that doesn't just take care of these not yet parties to the case and leave us w only the need hollands sure well the premise that is the subject of my disagreement is that the obscene plaintiffs are not parties until there's some sort of a conditional sort of occasion but where do you have authority for that it's the text of the f of the portal act which says that to become a party plaintiff you there's two ingredients really it's you sign the piece of paper and then you submit the consent form essentially on file with the court and the court certainly has the authority to put a standing order out there that says i'm not going to accept consents you know typically after a certain date or also before certain date but the accepted practice is what's that consent is lodged with the court that person is a party pla but what's the point of conditional certification seems to me somebody could send in a letter saying i'm opting in and they might not properly be part of the the group they might be administrative employees or the might be people who don't have to do work on the floor to take the facts of your case and so the district court has some role that's why i say conditional certification has evolved from the language that you cite and so i think that point the other point that bothers me very much is it was your suggestion that you were just going to stipulate away the rights of these people who are indicating they want to opt in but i can't tell who's their lawyer what their interests are and i'm very uncomfortable with taking that route sure let me address point one point two so with respect to conditional certification the supreme court said two terms ago in genesis that the sole consequence sole consequence of conditional certification is the sending of notice and that's really where the procedure came from it was it was a it was a procedure to identify and then send notice to people who could be affected so they could decide whether or not to opt in but certainly people opt into these cases all the time before receiving conditional certification notice they might find out about the case of your word of mouth and to the second part of question one to the extent and of course it does happen that someone a a case where they really don't belong there in the wrong employer category or something like that district court simply use the case management tools they have to kick that person out of the case so i mean which well i guess that is kind of my point anyway i think there is  something worth thinking about in terms of what the status of these people are there are some literature about this and i think at the moment probably the most useful thing for us to do is to focus on his hollands and let you make your merits argument for her she certainly is here she is here and i'm happy to do so but you know and if i'm right she's here on a final judgment and if she's not here in a final judgment least you can make your argument anyway fair enough well turning to the merits of this case calls upon this court to examine the boundary between employee and employee under the fair labor standards act like a student who is not covered in this court writes on a fairly clean slate  unlike for example the familiar independent contractor cases there's no case from the circuit that directly answers this question so do you think people who work at law school clinics are employees of the law school  student is in the you know employment practices clinic under the supervision of a clinical professor and representing people in court maybe their third year student they've got practice rights there are if the student certainly if the law school is receiving payment for the service i think law school certainly could if it's a title seven case and there's the shifting that's right i think in that case that the person would be covered would be covered as an employee under a kind of profession professional in that they would be professionally exempt under the fair labor standards act so there are only a handful of cases that examine this but essentially what they have said is when a student law student is operating under a student practice rule essentially they can take advantage of the professional exemptions so the answer your question is i think that person could be considered an employee but would be exempt from government for this other thing that's right i mean there are a tremendous number of lines of work i'll say to avoid the word profession in which practical training is a very important part of the training it seems to me what these people got from regency was a one stop shop basically they got their classroom training they got  the next step up they had their performance floor once they were done they were ready to be licensed and they could go out and work on their own and so i don't know why the better way to look at it in light of the four hundred factor  decisions isn't that this was this is really training they are paying tuition they're paying out to get this valuable credential at the end of the day or be ready to be in a position to test for do whatever they do i think that's right but that except thing that proposition doesn't answer the question you have to look at the structure of the fair labor standards act there are many jobs that require a course of clinical training and congress thought about this and if you think about the ways the congress could have come at this problem there are centrally three three options available option one is to say ok we're going to place these this category of workers whatever you want to call them who are at the centrally in the marketplace doing the work but still under the training regimen completely outside the coverage of the f l a say that poses problems because it opens the door potential exploitation and lack of oversight of employee the other option on the other side that congress didn't choose is it could have just said we're going to make we're going to make clear that these are for employees subject for minimum wage requirements just like anybody else that would be problematic for businesses because some of these  some of these workers are very valuable early on and help of course i mean and the market largely takes care of that in fact when the legal market was a big downturn you know around two thousand and eight some firms were trying and  almost a canadian style apprenticeship and bill bowls were much lower for those people the district judge though takes the view that this really one when all is said and done the economic reality of th interrelated training phase and yes are they cleaning the bathrooms i get that you know but maybe they're learning how to juggle all of the business realities of running a salon  so so what do you say to his his comment about the interrelation between the two wish and and the work they're doing that there's certainly no question that there's an interlaced ssion and it's a it's an ecosystem right because you've got the business right economic incentives you've got state all of regulation you've got federal law you know to come at it from another way you've got there are many examples of essentially workers in training who are paid by custom as medical residents is one of them nursing see in clinical rotations before they get their degrees that's right or not paid are they did not make the met right but the medical residents are but at any time to answer the question that you know one possibility is that tuition could go up i think that's that's probably fairly likely there's another possibility that the regulatory structure could just react it could put more focus on classroom activities or even in what who would benefit from those  changes will certainly the students would benefit and if you look it's not at all clear since you know i mean if look if we if we take your briefs argument that we assume reasonable economic efficiency in these markets if you take away one source of revenue for four regency it's going to make it up right it's not at all clear to me that cutting back on hours of clinical experience or  experience whatever the case may be is going to improve things for the public or for the profession well i think this just goes to the reason that congress structured the epilepsy the way it did which is under section fourteen a fair labor standards act it said employer employees who are employed as learners and apprentices that the enterprise essentially can go to the department of labor and get a get a sub minimum wage or to fit right reconcile that approach which can sweep pretty broadly but reconcile that approach with the portland terminal opinion by as it happened one of the sponsors of the fellas a coincidence we don't often see in federal law but where the opinion quite clearly implies that students in vocational schools like this are not employee sure well i think when you're looking at that analogy and for one terminal you've got to take account of the facts of portland terminal and of someone talking about the specific facts of the case i'm talking about the reasoning in the case they used the situation of those trainee brakeman like compare and compare them to students in vocational schools you know well that it's a valid argument there and i think the argument was made in service of the ultimate point there was no immediate benefit to the employer in that case you have a one week program it starts with observation it leads to some hands on a workplace not in a way that provided any benefit whatsoever in fact finding in that case was it impeded the operation of the business and and there in that case there's a direct analogy to to sort of the classroom workshop phase of vocational training and so as we point out in our brief analogy here is when the cosmetology students begin they start with classroom training and then they begin by doing hands on work with each other not for paid not for the public and that's really the analogy department terminal and so important terminal says well this this thing that was essentially valueless to the enterprise could have happened in a school that's what they were talking about by contrast here you've got the next step the performance face where the students are really going out into an environment that looks and sounds and operates just like the real world market with with some minimal supervision they are cutting hair  bathrooms and so forth and so what would the question really that's relevant as in so far as portland terminal is concerned is suppose the railroad would have taken it a step further and said the next step is you're going to do a one year training program focusing on an isolated factor which appears to be the main thrust of my opponent's argument which is that the school was the right thing revenue so let me ask this i mean it's clearly a big part of this program to have the performance salon if you will the performance and so the question is is region c essentially operating in a hair salon with a little bit of education on the side but mostly running something like great clips or you know whatever discount hair or place there is or is it really a school and because if it's really running a hair salon with with a little bit of window dressing on the side of of some classes then you would think the fair labor standards act ought to apply even though people are paying some tuition for for the classroom time when i think the answer to that is that the the state law regulations require the school regency to have a clinic to have a practical aspect of the educational training and what's important here is that the curriculum matches the regulations no more no less so for example if you were thinking that the school were really operating as a salon you would expect that the classroom training portion of it would be at the minimum of one hundred fifty hours as opposed to more than double what the state requires three hundred twenty hours before you get into the rehearsal and performance space you would expect perhaps of the curriculum would go more than the fifteen hundred hours total required by the state for example if there was another extra five hundred hours so that the school could operate as a clinic then that would be a different set of facts and what we have here but the other thing that i would say is the practical stuff that they were teaching in this clinic is stuff that was required by the state and that holmes yourself testified was very useful for her when it came to actually operating a salon and the school is prohibited are sole responsibility is to supervise the students in the clinical activities to consult with them beforehand to check in with them during the during the the service of the guests or any questions and then to provide constructive criticism afterwards they are not doing any services on the guest themselves and that they they can't on the law because license cosmetologists cannot practice in the school and so if you go back to to the entirety of the relationship the economic reality if you if you had the school not charging gas for services with anything change no you would still have the clinic you would still have a practical phase of the education the only difference would be where would that revenue be coming from and as justice hamilton suggested i don't think it's to the benefit of of ms hollings that the revenue come to comes from tuition for example or tuition hike as opposed to paying customers and by the way miss holmes also testified that  working on paying customers was more realistic because they expected so if you were paying for something they expected service so let me ask you this is there anything detrimental i guess you know is this one of those things where regency is running this operation but a little bit like the portland terminal case you know having these neophytes do the haircuts may not be one hundred percent beneficial anyway i mean that was kind of the argument that was made portland terminal case well i think the big difference between portland terminal and here is on the facts is that that there was a labor pool that was designed for portland terminal then to hire those individuals once the training is completed here there is no expectation in fact regency does not hire any of its students following graduation they go and work someplace else and i do they take they take an exam it gets good they take an exam started minister with customers all that is part of the exam so what the school is trying to do is give a real life as real life experience as possible and it and they're not and does it correspond to the academic semester or is it independent of that well what it is is that the regulations say they have to be fifteen hundred hours and the only and that's exactly what they do another there is when you say corresponding with academic semester i want to make sure i understand well it's one of the factors you know is this clinical training or on the job training or whatever you want to call it something that happens according to whatever terms of instruction regency uses i assume the in class offerings take place over some number of weeks is correct and then you switch to the performance rehearsal phase where you you go back and forth between them but there's an there's a particular number of weeks that somebody does that and there is there is now it they have to get to carry so let me ask you a hypothetical it's a different situation which which does happen where law students who may not have opportunities to work at a place like your firm mind volunteer at a private firm to learn what who benefits from that relationship in that situation if they're if they're not getting anything out of it that might be a different issue here of course miss holmes got academic credit for every minute she was on the performance floor so it's a different situation than the example i'd also like to sort of address the argument that that council made with respect to the section fourteen a of the i thought say and the origins of the statute i think the fact that congress contemplated in some instances apprentice could be paid employment only sort of begs the question the question is of course whether they're important or not in the first instance so i think the supreme court important turmel got it right by pointing out the limitations to that argument you know seventy years ago and specifically giving vocational schools as an as an example of the point right i mean this is an issue that is arising in quite a few guises whether it's the difference between medical students on their rotations and residence or whether it's other people who are in some sort of training program at some point cross the line and you're not being trained anymore or you are in some beginner's job classification whatever you may want to call it i can imagine vocational schools probably have much the same issue you know i'm speaking of you know maybe to the trade such as plumbing or carpentry or like christians or whatever on on the job you know actually doing things is bound to be an important part of education so there's actually a lot hanging here in terms of how long you can get this free work out of other i think we fall very clearly on one side of the line with the where there are students and again i think you know i go back record the record does show right how much money there wasn't this there's some back and forth how much you were netting how much you were grossing from correct so the record shows the revenue that that the school was deriving from these clinics but there was also on disputed testimony from the chief executive officer that the costs of operating the clinic more than offset the revenue and so to the extent that there's a difference between revenue and profit obviously and the other point with respect to immediate advantage even if one were to conclude that the school was getting immediate advantage from this revenue because that revenue was be offset costs the fact of the i'll just conclude with one comment that i certainly agree with your point chief judge what about where to draw the line and that is the consideration and if you're seeing this more and more especially with more and more jobs being regulated through arctic licensing regimes some measures up to twenty five percent of all occupations now and i would just close by submitting that this was the concern that congress was trying to get at with section fourteen of the fair labor standards act rather than courts come up with all these two hundred factor tests and you're an employee but you're not going to get paid and you don't it was very simple cast the net brought brought us definition of employment in any one act and all you have to do it's a very minimum administr come to the department of labor and say look in this industry in this circumstance it doesn't make sense to pay these people for this period of time and the department of labor can you can grant them that that's the structure the congress set up and we asked the court to get here to hear thank you for first time