bass strait judge required the employer to pay the department of labor the fall amount of back pay and liquidated damages which it had demanded close to a quarter of a one million dollars the department will in turn distribute the f l s a class action his experiences in that case sensitized him to the problems of workers who don't who basically have their time stole our of their lives their right to be someplace else while they're and while they're humane and generous employer during the period covered by this suit he played he paid nearly half a one million dollars in overtime to his workers a dory obvious ways he could've avoided such liability such as fix our river fluctuating hours which damages determination we did not appeal the liquidated damages calculation i looked and looked and looked for a case where they where someone  an employer had been found guilty of violating the fair labor standards act and and and required to pay liquidated damages and this court reversed it the liquidated damages are more or less because you're being frank you know liquidated damages appeal but you are challenging liability as to the non testifying employees or you are just challenging the damages calculation we are challenging we are challenging a liability as the non test as tyson foods did about clemens pottery is it said that if the evidence oh so abetted by the submitted by the class representatives what would satisfy the this summary time she that five star made to explain to very asians in work schedules and work locations and all that what was that summary of time she based on i mean are there any underlying documents that support that summary time she isn't just based on the memory of someone else two different projects that employees work on what is the underlying kind of documentarian basis for and thirty six so our record will include everything every underlying document that would support one is contained in that summary time no it does not it does not contain every probably if if if the court had really taken a deep dive into the calculation it would have it would have been there but i think most of what we of what went into the calculation is that those five hundred is and those five hundred and sixteen trial i mean he testified any is a sympathetic when is high and really i remember him testifying very like what you said he described his experience and then he and his wife therefore became perhaps unfortunately for them incredibly trusting and as he testified he simply trusted employees to notate their time and he wanted them to put down every minute of their time but it was a trust system i thought that was his testimony and in some ways therefore the fact that there were records came back to haunt him but he was pretty adamant that it was a trust system at least in my memory of his his testimony well and and it it was and that and that system is is pretty much universal in the construction industry you can't have time flux when you're going to win when you're out in the field now it just it was a try sir if but then it does trigger if there are records that the department of labor can use it will trigger in this amount clemens and the case that department of labor you know relies on heavily as the run in case of ours it allows us as long evidence that undermines the employees the employees estimates and at that point according to pattern jury charges they have the ultimate burden of proving that their that their estimates are reasonable now but i think that i think they  employer is still even if he even if he has has records that are based on trust and i don't think there's any any law that says that says that that's that's improper for the employer to do that but she i mean obviously the magistrate listened to the investigator in the employees and looked at all the records fairly painstakingly and she is very clear she credited the employees and then in the post trial brief one critique i believe from your client did a heck of a job if i may credited with that of of taking at least hundreds possibly thousands of pages of records and getting them and into a table which is attached to his to his employees who were awarded damages here in this case was mr coburn a supervisor for all fifty three of  know offhand yes he was us ok after having failed to comply with that statutory duty to accurately record and compensate for pre and post shift work performed by its construction employees and having benefited from this  precision that would have been possible with those records this court should affirm the district court's award of back wages for five stars workers for two reasons st the district court correctly applied not clemens by permitting all based on purported variability in workers ships and assignments are just not supported by the facts such variability to the extent of insubordinate in five stars records that's already been taken into account  available but this is common practice for the department of labor and has been accepted by many circuit courts can't is there any reason to think that be the proof standards are any different outside of a class action or the collective action players i believe you're referring to the standard for whether or not representative testimony would be permitted  labor and i'm circuit we have we've said that representative testimony is permissible if those testifying employees have what we call personal knowledge of the war that has been performed by the non ringback the construction employees here did alternately go to different client job sites during the day they were all required to be at five stars from the seas approximately fifteen to thirty minutes before their ringback official seven am shift and at that time they saw one another performing a similar work which was gathering and loading materials that would be needed looking to see if i can describe that testimony to you so for men south pole accio testified that construction employees would try to testifying construction employees explains that most other construction employees also arrived around six hundred and thirty dollars and would spend that time gathering materials unloading construction excuse me loading the company trucks so for the periods of time current issue here the pre and post shift work the employees did have personal knowledge excuse me the testifying employees did have personal knowledge of the work for by the non testable i mean please i should also point out that here unlike some of the cases such as wal mart that five star alliance on the fifty three dollars employees here had a single supervisor they were subject to the same compensation policy under which they were required to arrive early and perform uncompensated work before their shift and not to leave the job site until three hundred and thirty and to drive the company truck back to five star again without compensation so both the personal knowledge that is explicitly in the testimony as well as the personal knowledge of the common policy that applied to all of the workers should be sufficient and as you noted we did reliable quite a bit different job sites and performed different but similar tasks excuse me and because there was a common policy that was found to be sufficient for the testimony here in this case is it's relatively straightforward there were six employees who testified for the secretary of labor those included both for men and help matters as well as both those that ringback worked on overhead installation and underground installation projects just spite that degree of variability the workers all testified consistently that out several three t company vehicles which they would then drive to the job sites this loading activity was a necessary ringback part of their job so that they would have what they needed for their shift at a client job site is johnson again just having read the trial record in my right that the owner was in tragic that it was a trust system he'd gone through this in self you wanted to be generous and therefore he just simply trusted the employees said and they really blame the supervisor this man mr cobia and they said no no no no mr koby is the one who told us to show up early and not record is that correct that is generally correct yes ok and so then i thought th judge specifically credited the employees over koby and then i thought all right well that's not going to be able to be disturbed on appeal but i kept looking for any government cross examination of cobia in from that mistake and the government leaves the opportunity to cross examine him and that made no sense to me if the case turns on his claim well the employees claim that he is the one who said don't record and the owner says i told him to record it why would the government not have cross examined cobia well i i will check to see if there was cross examining and it'll take me just a nd but in the meantime it is true that the that mr of police shows did testify that there were written instructions that employees were required to  all of their time it is also not in the record that those written instructions were provided to the employee usually on their st day of work along with other employment paperwork the instructions were printed in english only i guess the problem i mean you know there's no well but my problem is let's say it's that consensus testimony from the employer is that they told the employees to record their only does it allow for an a case if then after they leave the firm they say that they didn't record it can they actually still prevail having been told to record it and then they leave and then they just say they didn't and their credit d  n disputed whether or not he told employees this however the district court did credit the employee's testimony as i said that would be conclusive for me on appeal but the government didn't even try to cross examine him so it's just a bit but i made that point i guess legally the question i have for you as any circuit question the use of representational evidence under  clemence i'm sorry i didn't quite catch a nice or good question even though there's been some scholarly critique and some as any circuit to your knowledge tighten up the mount lem formula or its use at all especially in light of tyson or wal mart to your knowledge not to my knowledge although in middling i did not seek out  examples of each circuit or i'm sure that is is it inaccurate limiting principle that in order to use representation to prove the back to what i think you were getting at about competing testimony here i do have another of follow up points made there which is again this is a competing testimony situation but the employee and employer see how different burdens here because ultimately it is ringback the employer who has a statutory duty to keep accurate records and complete time records and it's only when the employer does not meet that statutory requirement that we even get into a mount lemmon situation and then once  not clemens does apply because of that failure to keep records then employees just have to put for evidence showing liability and then evidence from which a just and reasonable inference can be made about the extent of the uncompensated work i understand i understand how it works i understand all that i guess it would have been so easy to cross examine koby and say i'm showing you time sheet number one for this employee and why how could it possibly be that all of them have exact hours if in fact they're all testifying that showed up early and it would have had almost no way to answer don't just startled me that he testifies on direct that he told them to record everything he didn't you know say what they said but anyway it's just just maybe i'm wrong me about i looked at the record pretty closely what it what about opposing counsel's point that it couldn't have been representation testimony because some crews did night shifts and some crews worked out of the country and therefore there would be no way to extrapolate from the number of employees that were put on the st to say your honor is that the secretary conservatively estimated back wages and made every reasonable assumption in five star staver but the secretary did not m the across the board reduction of the five star sought when they were not supported by the evidence so a number of the reduction that five star sought had to do with factors that were already taken into account in the secretary's methodology such as holidays time off four day weeks those who are already clearly accounted for with respect to time either ships that were night shifts or out of town assignments those shifts are just not reflected in the time records contrary to five stars assertion the time records for the most part just include the total number of hours worked in a day no serving in stopping times from which you could you might be able to whether it was a night shift or a day shift they include a one or two word description ringback of the location from which ringback it is not possible it was not possible for the secretary to determine whether those were out of town is that there were a few time sheets and i admit just a few who where there was pre and post work indicated when those subtracted from the ultimate pre work loading period where the drive home period there were none it was uniform my interest my understanding or i should say i'm not aware of any examples of a typical seven thousand three  shift where that was included now five star notes that a specific time may have been early time may have been included in certain non typical instances and without looking at those particular time sheets i'm not quite sure what might be going on there but i will say that the secretary looked at all of the time sheets to determine whether or not the employees worked on that day and so for instance maybe here is the way to to answer your question most of the time sheets they don't actually include what hours of work just the total that was worked so it would not generally be possible for the secretary to look at those and determine whether they include any employers disagreements how did how did they calculate where they were faulty estimations as well as income said at the end of his argument most of the examples that were raised in five stars brief were things that were not initially taken the federation by the department of labor in an initial calculation but after a trial and after the secretary received the time records at issue corrections were on an employee by employee basis and a week by week basis to determine the hours worked she gave credit to five star if an employee didn't work in a client job site that day for star were not things that were readily discernible from the record even after the trial testimony and that is why the district court determined that the flame out of time would you like me to briefly conclude are asking me i'm sorry i think go ahead and just do your complete thank you your honor there's the alternative five star dances in which any employer who fails to keep accurate records could avoid paying its workers i think you're going to now talk to us ok first off there's johnson spoke about a statutory duty there is no statute there is a statutory duty to keep records but it does not say that you cannot rely on the employees on a state that's what happens in the construction industry and that's what makes this a fairly important case because what you're what what we're what we're talking about here is whether or not to to give the the construction industry under an obligation to produce bricks without straw now representative just representative testimony of the testifying employees did not testify that they had knowledge of what others were doing they testified that they knew what was going on when they had a ship beginning at seven in the morning and thing and ending at three hundred and thirty they did testify about that and what other people were doing that but five star had a great diversity of  deal is calculations were based on five days for week but the payroll records deal well head and the records are undisputed show many times the crews work four day weeks and there was no credit given for that the calculation was based on load something like two thousand dollars out of a total demanded of of one hundred and twenty five thousand dollars not a significant reduction if you look at mr blasio scout's relation especially in the record  testimony i think need i think needs to be cabin to situations like like tyson foods where everybody did the same thing all day long and stayed and did at the same average doffing and on it of what his of what his testimony would would be i think that i think it's important to realize that fox starr had an open door policy response ceo's was was a was an old school employer who came up through the ranks like the man got along well with them there were many examples in the in the record of when the of when people thought they worked over time and they and he adjusted their to their pay accordingly i think it's