all over eight hours a day and over forty hours a week should be a straight f l of say overtime well your honor not for all of those hours there are certain categories of regulations that restrict entitlements overtime pay for regularly scheduled overtime hours in excess of eight in a day when employer receive standby duty premium that's her five five one five zero on a wand we're not asking for all overtime hours in excess of eight hours in a debt if we were shifts correct so you're saying i don't understand you saying you know if you're not asking for over eight hours a day when you're not asking for the additional sixteen hours and the right correct we're not asking for overtime for all sixteen hours so we're asking for sixteen hours of regularly scheduled overtime in the ninety six hour periods and forty hours of regularly scheduled overtime in the one hundred twenty hour if yours and the regulations and the statutes they allow standby duty entitlements overtime pay accrues from title twenty nine or the apple a set not title five so the preclusion and then the court gets this wrong the trial court gets this wrong by stating that o p s pay regulation also appropriately recognized congress's intent for standby duty premium pay to compensate for regularly scheduled overtime hours spent largely on standby duty status that would be correct for exempt employees this is precisely statute provide provides that the receipt of standby duty premium pay can substitute for a regularly scheduled overtime pay under that sub par which is title five but if you read fifty five forty t see the year of the us code you see that none of those overtime rules none of that overtime entitle net that's created under title five applies to employees who are entitled to f l a say over time and there's no dispute here that our employees appellants are entitled to f l a say over time in fact this was an area that that appellee initially argued before the trial were that the employees appellants were not entitled to the regularly scheduled overtime but then seated that argument here now they say the employees are entitled to a regularly scheduled overtime because that's in line with five zero one a wand and the other provisions of the regulations that o p m put forth as well as the statute but now they argue that the receipt of basic pay and standby duty premium pay already compensates for the straight time portion of overtime but is that stand by creating a compensating for if it's not compensating for the irregular work not irregular there's a lot of terminology here that i'm going to get raw but the essentially alternative work schedules of the of the longer than forty hour weeks a one it also compensates for night time differentials weekends holiday work so there's various categories of pay that standby duty premium paid compensates for but i want to be clear that but hey at issue here we're not talking about the differential and all that stuff we're talking about the same buy pay you get when you work the all day on a whole day off schedules right correct and some of that is night time and again that substitutes for the night time differential that the employees would entitle to but there's a distinction so did the other cases cited by appellee and that's a key distinction because those employees covered by these other cases the ruling of brave before they're not entitled to overtime pay for regularly scheduled overtime in excess of forty hours in a week or eighty hours in a paper that's by virtue of five on one day five that explicitly says in the regulations that if you're a section seven k employee and you receive standby duty premium pay you're not entitled to regularly scheduled overtime for hours in excess of forty in a work week that the premium pay is actually intended for a specific set of time those hours in excess of the forty hour basic work week or the eighty hour piece of paper they kind of kind of differs with the a premium pay doesn't really apply to any hours it's the sort of just covers some some unknown set of hours and the ford center says no really it does cover a set number of hours it's those hours in excess of the forty because they work different work schedule they get a premium pay to encompass that different work schedule which in these people's cases is is one day on two days off which in some weeks contemplate giving them an annual salary plus the premium pay for that schedule well because the regulations in the statute do not provide any authority for that payment to substitute for at the let's say over time say over time has to be paid separate and apart from all other forms of payment i mean here's the problem we recognise time and again that tied up by an eval a say don't work together very well and o p s job and our job is to make sure that they work together so that people are paid more or less than they're entitled to and is it really kind of the gist of your argument going to be that these people are going to get time and i have four hours that are probably ind versus actual hours and doesn't that conflict with the whole purpose of the standby pay premium well your honor respectfully i don't think it does conflict and i think that the internal many really back up to the actual predicate for that because i want to make sure there's no disagreement about this in a in a typical and i know there could be differences but it's typical of forty eight hour work week do these people ever actually work more than forty eight forty hours or is that hours that take them in going out of halls cleaning their trucks stocking their trucks doing paperwork whatever and stand by hours when their only restriction is they have to be on a site but they can watch t v they can sleep they can do whatever i mean i think you have to admit that there's a work more than forty hours of actual work in a typical work week or is it always that they're working somewhat less than forty and then they're on standby some things that take them up to the forty eight you're on your honor i can answer that best by saying the record is not clear on whether or not there ever beaks that they actually do work more than forty hours in that week if they actually work forty eight more than forty hours of that week when hasn't the government already agreed they would be a entitled overtime if they for those additional hours of work right well no your honor what they do is when they work more than the regularly scheduled to or so if they work more than ninety six hours in the paper they call that irregular we schedule overtime hours they do get paid time and a half for  regularly scheduled overtime so there's no dispute with regard to that payment though they are getting paid at the flayed at half time rate because they're not including the additional straight time we're sort of overtime pay in the total remuneration calculation which goes into the hourly regular rate for the half time part but but again i want to urge this court to to under under the regulatory conditions work includes being on standby duty being on the duty status so there's no issue here that these employees are not entitled to the f l s a overtime pay for the hours in excess of forty in a work week but that make up the regularly scheduled to work duty hours but all the requirements that it nerd to when you're on duty in what you do what's required of you a different when you're on standby you're out of the records not clear on that but they're on standby so if an emergency call calms they have been struggling with these issues for twenty years not just here on your side too but when you say that they were see that one thousand whatever for every hour jus me and a regular schedule of forty eight hour work week that's not supplied by forty eight hour or slack of the hours per year and then it's remote supplied by the forty eight is that roughly right that's one way of thinking as i think the way you thinks a better way of life you know that well just to go to the big picture i think the best way of looking at it is that these employees work a position that's not a typical federal position they don't have the typical forty hour a week instead they are regularly scheduled for either a forty eight hour week or a seventy two hour week and so their basic pay and their annual premium pay the standby pay these are annual types of pay that compensate them for that basic pay and stand by pay and they had both hours of non overtime and hours of regularly scheduled overtime and the court there said that the total  compensates at one hundred percent for all of the hours in the tour of duty still and then adding the additional one half the regular rate for each regularly scheduled overtime hour that accomplishes the full f l s say over time and time and the same is true here in the real insight in steamrolling is just guster out the opinion but including they do cite to numerous department of labor regulations and have a similar insight especially in for employees that receive as an annual salary the goal is to figure out what is the typical wage paid for this for this position and what the position requires and then that's the wage that you want to make sure the employee is getting time and a half and here and that really this court's decision could begin and end with five c f r five five one five one two b which has a special definition of the straight time rate firm please that receive annual premium pay so because that that is used to calculate the rate is almost a tautology it is a tautology that is is the answer what you said to me earlier that this is what this calculator and multiply by either the forty eight thirteen they concede that the combination of that the proper denominator here the combination of the basic day and the standby pay is intended for the full regularly workday so that's on forty eight hours  at this point in the case the parties now agree that the proper number to divide by is the full number of hours in the earliest scheduled work week and so that's the street time rate and so if in the example we use for example  the the sample employee receives nine hundred fifty six dollars rounding in a regular schedule in berkeley for forty eight hours you know by that by forty eight and you get nine hundred ninety two and that's the value that also parties agree is the correct street time compensation or not and that's really not the question here we agree with the government has always agreed that this is a case where they are entitled to f l is a compensation for hours in excess of eighty in the  well in a in a ninety six hour pay period forty eight hour work week that amounts to eat hours in each week of overtime so i'll turn to this is a regulation that the plaintiffs are discussing five five one five zero one says that if you work over eight hours in a day those specific hours may not be overtime so long as presumably for over forty a week still would be and then but also applicable here that the plaintiffs don't mention it's sub eight and at over forty eight are not at all i say overtime unless they are also in excess of the compressed work schedule so this is this demonstrates why the seven k exemption is not different just like the seven k employees the plaintiffs here don't receive as well say in excess of eight hours in a day or a fella say thanks at the forty hours in a week but unless it's unless it's over the compressor schedule but the point is that by five  one day five on one and the seven k issue these all address the issue of which hours are overtime hours that's not the issue in this case so that's why it's really a side issue that we don't want to focus on that the issue is we know these hours are overtime hours how do we properly compensate for them under the l s a and o p m says that the entitle ment is straight time pless half of the regular rate and the times of the employee's hourly rate of pay times or all overtime hours work so that's something different than the end over time and title and that is referred to at the beginning  two and that may be often the case it depends on the site types of payout issue but what's confusing isn't that the use of the you use the phrase the employees overtime in title meant includes and then there's you say straight time rate of times the hour of the regular rate of pay maybe it's just me that's confused are you referring to the fact that it says it looks like all it's a very confusing regulation yes ok and i might take a actually perform two days even close to the forty hours that a lot of this is standby that's contemplated by the regulations that talk about which percentage of premium pay they get has different things depending upon how many longer than ordinary work weeks i e over forty and that in total feinstein had using this special type of premium pay and they have to reconcile that with that the f l s a understanding that if you're required to be onsite that's effectively an hour of work for the l s a and we agree that these are out to work for the f l a say but the question is in the understanding and soon relaying what really is the typical hourly rate paid and the typical hourly wit rate is the basic pay and the standby pay divided eight there actually was a sentence in the statute saying and i paraphrase that the basic pay is intended to compensate for only forty hours the work week fifty two hours in the year and there that language has been deleted and that by five zero four it now is merely a tool of conversion to convert an annual rate to hourly or monthly rate so the argument was rejected in the your honor there is no difference so it's ok i'm here and if you follow up you know it's regulations the plane reading you would have to find in favor of appellants five one two sets up a calculation for the straight time rate of pay and early rate this is comes from combining the end you know salary and the premium paid ten percent premium pay and doing that and then over the forty eight hour work week not the forty hour work week so you're getting that one thousand dollars for all forty eight hours is that right you are a pelleas method of calculation lutes the basic pay to cover all forty eight hours when in actuality the statute only allow so it covers all it covers all forty eight hours not for and that's working well if you get that for forty eight hours correct you're good at annual salary that over the that divide it out over each work week and then in a recognition of the fact that you're on standby and then work these forty eight hour work weeks for some time befor basic pay only actually compensate you for forty hours and the standby duty premium pay does not substitute for ethyl a say overtime pay so again even though they are intended for that in that calculation you still have to take the