and i may please the court i'm jerome west of it i represent nine farm workers who were hired to unusually high wages and then denied the work they were hired by a labor contractor name jaime compas who acted on behalf of four separate growers one of the growers remains in this litigation and only one wrote i said one grower and it actually refers to two related businesses that are operated by do you know said about this but there's no material distinction between those two businesses so for economy i need to refer to  dependence as the grower the main issue is whether it agency relationship existed between the grower and the recruit fruit or at the time that the recruiter hired the workers the district court held no on summary judgment because the district court found that there was insufficient evidence of the amount of control that the grower exercised over the recruiter's activities she should we be applying new mexico law here honor and what what what agency case you ask us to apply here in hagar the site in our brief the new mexico supreme  adopted this section two of the nd restatement of and in section two part three it provides that it dependent contractors can be contractor but the degree of control is less for an independent contractor an independent contractor agent exposes the principle to less liability and there's no liability for physical torts if it's an independent contractor and that's the how to me a case the but there is if there's an independent contractor agent and if there's enough control then the independent contractor agent can still bind the principal to contracts i want to get to your your point about what control does the principal exercise  principal controls the result of the of the independent contractors work and as as described in new mexico military institute case that we cited in our briefs not only  is there the control of the result but there's also the ongoing control that the principal exercises in being able to terminate the agency relationship at any time if the principal during the course of the agency relationship gives an instruction to the agent that the agent refuses to honor the principal can always terminate the agency would trash and he will be viewed as positive decision because you could have a contract saying you are an independent contractor i'm not going to control you in any way your actions are your own choice however if i'm ever unsatisfied with the net results of your performance i can fire you  wouldn't argue that was an agency situation would you key and i was it was saying it it really isn't a key because you could have that right to terminate but no power to control and nobody would say it was an agency's was still comes back the power to control it the element of control is necessary but by describing exactly what result is required by the independent contractor that is controlling the actions of the that is sufficient control to  agency and any agency relationship i ran an airplane company and i told to a support supplier you have to make this a part to control the airplane and here's exactly what i'm expecting of you it has to have these variances these tolerances these various items make me a part not buy it i'm giving a very precise test of what the result has to be but you wouldn't argue that that was agency would you  but there's no rd party that's involved in your hypothetical you haven't heard part is the one that makes the makes the components a necessary element of agency even an independent contractor situation but the but the principle does can exercise control by by prescribing the result and by being able to terminate at any time i would emphasize this cour recruits farm workers and then supplies it to various ranches and farms in mexico and there they supply contract labor is not a fair way to describe what their services are  yes sure it was to force for specific farmers the only for that they had relationships with which he was brand new it had only relationships with four farms and there the four that are listed in the particular farm like survive on this or did because they represented bridey of farms or did hire people in saying sometimes you can work at this farm and then when that harvest is done you're going to work at this farm and that harnesses then you're going to work at somebody else's f m the workers were hired on a specific contract and the workers were hired for all four farms on the contract at the time of the hiring the record shows that the the  recruiter did not designate which farm any of the workers would would be assigned in fact they could end up working from various farms depending on their neat law not according to the apple lease in their in hire workers on their behalf and how those workers work for them for the entire four months but they weren't parties to the contracts that really didn't matter what they understood the question is what was the contract in the contract gave  because it's not clear to me how the ada via p a was that is fight here that's to protect employees and employees or people who work for supper to work or paid to work or suffered to work for someone and your clients never worked for seven days so before you can get to survive on today's been a joint employer it has to be an employer doesn't it and how is it an employer  you have any cases that applied to someone who's complaint under the age of your p s a is that they weren't hired as opposed to being mistreated after they were hired no i don't have a case because determined according to seven factors that's what the district court held that is what is i'm going to join employment with their joint employer whether whether i could before but there's a predicate for that you don't consider whether someone is jointly employed by two people two employers intil you have shown that the person is employed and none of your none of your clients were ever working for serve that's not the way it was argued did not focus on that but we it just makes it impossible for us to analyze with the joint employment we already have decided whether there's employment  but the regulatory interpretation that that covers pre work activities because oppa governs not just not just recruiting that have always happens prior to someone showing up at work but also also covers see if you have something on that i didn't i didn't notice it in your briefing we are not asking for a ruling from the court on joint employment what we're asking from the court is the ability to waive the seven factors that everybody up until now has described to as has he is employed by two different employers but here they're not employed by anybody they haven't worked all as the court has asked there is no agency basis for contractual liability i mean there are the two survived as defendants number one number two there is no joint employment in the court properly found this as a matter of law at the district court level and then rd counsel do not address the allegations of a civil conspiracy with the st because this strikes me is just the quintessential agency relationship that w k i is supposed to go out and hire people companies to do that but the cases that you're referring to and relying on are all tort cases where the standard for liability is quite different from contractual liability and miss how does this not m there's a factual question here whether there was this contractual relationship but the control test that the district court use is just not what either the restatement nd or the restatement rd or the next who courts control and it is and it's authority if you if you hire somebody to go out and find employees for you well let's take exactly what happened here to get the approval from the government to have immigrants come in and work had to have the jobs lined up for the people that were coming in it had to show that those jobs were lined up and it showed that by providing an agreement that it had with the various farms said you bring the people here will employ them that's what you need for agency if that's what happened i'm not we're not talking about granting summary judgment to the plaintiffs in this case we're just trying to get the right legal standards set right so george i think we have to focus as the district court did are properly on what the  agency was and the right to control here the court focus on recruitment the issue was recruitment so if you if you look at the factual circumstances here mr compas comes to see mr bottoms up the farm office and spends fifteen or thirty minutes with them and says i'd like  this outsourcing agreement it's a it is a agreement to provide workers that's all it says we we will agree to provide these and it says so at a certain date in time which course never occurred a government needed a guarantee that was understood it may not have been effectuated and that may be something to be determined once the proper test is is applied but what the government wanted was something showing that if these workers come in from the united states or abroad that they will have jobs so there was a commitment by the farms that if you bring us these these workers we will put them on the farm for four months minimum i think it is that's a standard agency arrangement the agent has the authority to hire these people and the farms agree they'll bring them on and give them jobs that and that's all that's needed there's no more control needed than that the issue here though just to judge is what was that what was that level of agency you know as an agency has parameters what was the  you have a right to a job not how they'll treat them once they're on the farm that would be tort action and there you'd need control but to just give them a job for four months that's all the control you need is to say if you bring me these people i will hire them and then you don't hire them you breached your contractual arrangement that was entered into by an agent who had the authority explicit authority to enter into the day came that they were to appear they didn't appear in fact mr compost away came after showing up at mr serrano his office and signing those documents mr summers never heard from him again that was the end of the discussion and so when november comes around and these fifteen employees are supposed to be provided there's nobody who shows up so you may not have broken the contract entered into by your agent but your liability is a contractual liability and the test is not the same as  any authority for that but i can find it certainly not the state and nd i'm sorry no one side's to restate their which is superseded and apparently the distinction is clear in the new mexico courts between the life and i of course don't disagree with that that there has to be that distinction i would disagree that the district court misunderstood that distinction in this case i think that there's nothing in the order of the court that suggested that they were conflating tort and contract theories  independent contractor from the employee which is irrelevant and in the contractual context i would i would agree the court did do that the court did look at the right to control and i would also agree with you that may not be the proper parameters a definition of agency but my suggestion here is not withstanding the courts perhaps conflating contract and tort theories for purposes of agency and the fact remains here that whether there is an agency relationship to the court's point the there is still the scope of that agency the question here is did the scope of any agency the only agency conferred on wiki by the survivors defendants was to provide and that's the word it says to provide fifteen employees at a certain date that's it well that the government thought that the farms were obligating themselves they had this contract i mean that's a fact question that that's an issue that the court below has not resolved as again  recruit and a way to recruit and how to do so and what forms to fill out a note a process there's no evidence of any of that when i say what the government thought it's what the low requires the low requires someone who's going to bring in workers under this program has to have jobs guaranteed for them if they come in and i think and since the  because wiki did not have any farms it's saying i am i have contracts with farms to provide the workers and maybe that wasn't the objective understanding of the farms with regard to the arrangement but that's not the ground on which the court below ruled and so i'm concerned that the right law be applied the agency and so it whether the court misapplied tort theories for independent contractor employment in lieu of perhaps a proper analysis of agency the question comes back here again this is a cause of action f contract you have individuals who are suing survived this for breach of contract and of course because there is no contract directly between these individuals and survived has the power lines here are going through an agency analysis to try and suggest that there liability arising out of the agency so you have to then if you're looking at an agency analysis properly you have to look then at what was the scope of that agency the there is no evidence there's no evidence in the record and that's why the summary judgment was appropriately granted here there's no we've cited none of the briefing your honor and i'm not aware of anything that will eliminate the question that's before us here which is the outsourcing or these types of relationships as it relates to the ability to buying employer ask you regardless of whether you call it a contract agency or toward agency if you look at contract agency you have to look at the contract between servant this and w k i is that correct that's correct and does that contract  have any provisions in there about what you create would hire or not hire or interview or not interview or liar or not lie or any of those provisions absolutely you know so it's all i mean i think we we need to be sure we know what kind of agency we're talking about but in either case there is no contractual only contract provision i know is if you provide people will employ them and people were never provided and that's exactly right judge and it bears emphasis that again that document that you're referring to makes no mention of wages working conditions hours locations all of the questions that you asked of mr west of its earlier about where they would work there was no assurance that any of these individuals would workforce or volunteers or ever any of these individuals would have ever worked for survival of the survivors defendants or on their farms none none of these opponents can show that they were shown that's the farm they would work on or who they would work for or anything of that kind so you're precisely right this document was really and most important if you look at the effective date of the agreement the effective date of the agreement by its own terms expressed it was november the th which was the date the individuals of the farmers were to arrive so this document arguably never even became affective because it was a document to create a contract at some point in time when these when these individuals were were provided but i but i agree with you to all of the the points you made that this outsourcing services document is entirely s due respect to counsel the district court noted a number of liberties taken and recite patience to the record where the court would read the record and conclude the record in no way support of the arguments be made as a factual grounds in fact in some cases the district court found that when they they weren't employees you didn't even need to just say they were joint employees joint i don't know that we made it quite that simply and i assume that they are they issue that was before the court was whether they were joint employees because that's the only liability that would d flow from the