morning the issue that we present to the court we think is simple and discrete and i hope and expect my argument today will be simple and straightforward as well the issue is whether  submit that the record before below the true blow if the trial court level was mixed does not demonstrate that this issue is resolved as a matter of law and warrants a trial i will briefly discuss the facts as they inform the rest of the conversation ran steady is a multinational job placement company what it does is it fines generally clerical and office staff workers to work at its clients offices in a temporary labor situation the plaintiff appellants in this case all work from randstad in all and made up for and senior account manager and you're claiming that all of these do not qualify for the administrative exemption that's correct so are there any jobs that would qualify in the company  organizes its operations nationally in multiple branch offices so like many multinational branch establishment the the leaders of the branch office are typically exempt from the f l as a the the job titles at issue here the job duties at issue here are generally the same with one distinction that i don't think is material in general what they do is they connect corporate company's needs the consultant the staffing consulting the senior staff and consult that have an additional duty and that is to attempt to locate other clients other prospects for grants to do these board types of people produce prospects for the business clients and then the business clients pick among the prospects that are found or do these four job categories actually pick the very person that's going to go to the business client i think it's somewhere in between the the four job classifications that are at issue do not have the authority to hire to fire to discipline to terminate they can recommend and that's it that's as far as their authority is is unleashed so so they don't have they're not recommending to people senior in their company they're recommending them to the client right that's that's correct so i mean the way i see the dichotomy is if you're screening for people senior to you you're not going to be elegy and i can have enough discretion but if you're picking for clients and it's very judgment driven as is the communicate well is that a good fit that seems to have a lot of discretion to it the let's let's talk about the fit which the the issue of finding the fit is what the district court fixed on and and he relied on three cases in grants that has found a few others that discuss finding the fit in this recruiter context in a case like this we have been criticized in the briefing papers as losing the forest through the trees it's my belief that this case is all about the trees it's all about the minuit details and if you compare the job responsibilities the powers that the  the clients have compared against the cases cited by ransom cited by the district court you'll find some overlap but where there is an overlap those other cases had more cases involved greater authority for example the ability to fire to hire two to discipline i don't i guess i don't know what that means here it's a placement service right that's the key thing and you can have all kinds of guidance in the company about how you do it what we're looking for so forth and so on but it just seems like the only dick out of me that makes sense to me is one that says ok one possibility is you're screening your job is to screen for other people within your company to decide which ones to send to the clients and the other option is now you apply these criteria and you pick them and it's true the client may not agree to use them climb me send him back all that may happen but i just don't understand how the second option doesn't have a lot of judgment and in that seems to be this case because they're not screening for other people within the company is what i don't understand they are two things they are  restricted by randstad by through application of very conscripted of screening requirements in other words there they're not at liberty to to to choose from a to z randstad gives them very discrete screening criteria and it goes beyond the guidelines to the point where randstad gives these employees a one or two page form a political to the job at issue in other words a clerical worker may have a different form than a janitor and it's the if you find someone that meets all five always send them out it doesn't say this is not how it works it has the judgment of is this a this is a good person for this job it's not just checking boxes and that's where the judgment comes in i mean a human enterprise the what i would submit your honor is that to some extent there is there is judgment involved in every in every step of every facet of probably every job but nevertheless the question is whether it rises to the through the level contemplated by the administrative exemption and we're talking about this completely without reference to basically as the trial court did to what's called the w p i or the work product of any indexes it seems there's different names i notice that is that one i don't see how that has any bearing on the case that's just making sure they work hard though it's not it that's not restricting their discretion as to the people they're recommending to the client you're on i would submit that it let me explain to you how it works because i don't think we did a we you can use your time on that but it just doesn't seem like your strongest point it seems about me it seems to be about making sure the number of hours and the time they're putting into the job that they send one person for each opening not necessarily no but they'll send one person and if that doesn't they don't if the client doesn't like that person they'll send another they're not sending four people in saying these are poor good people but we've prescreened and then they leave it to the client i don't know that there's a a universal rule here my sense is that in general they they say they fill the position they attempt to fill the positions opened up at the clients should it make a difference whether what they're asked to do is to say to the people in our job pool meet some basic requirements like education and then forward all who meet the requirements to the client or are they being asked to pick the best one or two in which case they're using some kind of factors and then we could get into what are they using factors that are scripted for them but does that basic differentiation become an important one i don't think so  in all cases they are subject to and applying randstad as fit criteria so whether there they're promote how detailed are the fit criteria if the fit criteria are for an accounting position does the person have a b s in accounting if so they meet the criteria then there's the discretion being exerted it's really just checking the boxes so this is the kind of analysis that struck work did not in the trial court to begin to use france to view looked at the at the forest and and didn't bother with the trees the and as i said i think that this is the kind of fact specific case of the type that you're asking me about that does not is not amenable for summary judgment and warrants a trial of disputes about what their job duties or explain the the one hundred points that employees are required to score in a given week is the way it works is there are organized by job activity say twenty points in this week for off site visits and eight points this week for this week for telephone calls when when you the only discretion involved in the performance of that activity by these employees is in what order are they going to perform these activities in a given week and there's there's no ambiguity they have to score one hundred points in a week i agree with you the product of a report it's a product of any measure and it doesn't give them discretion i agree with that entirely but i don't understand how that helps you with the point that they're exercising discretion when it comes to the people they're recommending to clients that's because every time rand stead and it's every week that  establishes this this hundred point requirement and assigns different activities that my clients have to satisfy in order to get through the week my clients are required by virtue virtue of the application of this hundred point test to not perform other functions it's it this isn't it by by imposing certain requirements and job activity requirements  d has made the determination that other activities don't count so and don't get to the hundred points and these employees have and have no ability to add on to their their weekly  obligation i suppose the w p a i was said you had one hundred points twenty points have to be looking for jobs in the academic industry and twenty points have to be looking for jobs for our clients in the computer industry and twenty points et would that then show that they don't have any discretion at all if within finding academics they're making all sorts of evaluations no i don't think so but the the w p r o is much more specific than that it's it's it's much more specific as to required activities it's not a general description it is a very fact specific very specific things like making you must be making telephone calls seeking new clients or writing and and you should understand your out of that the points are not a function of time so for example a and out of office visit may be two or three point assessment  or score even if it takes half a day so it necessarily takes the discretion away from these people in the performance of their job at  said the sales function of the of these job descriptions is is typically done in the office romance that does not want people to go out of the  phone calls to to stew x number of prospects business prospects and there are points associated with that we've taken you well over your time thank you very much please the court good morning my name is jennifer riley i represent defendant appellee randstad general partner u s this court should affirm summary judgment in favor of or on stand because the district court correctly found that the apologies one of the plaintiffs in this case actually that's not an issue in this appeal was named sue hi my child read and she actually exercise the function of what we call a talent acquisition specialist which means she was responsible for merely sourcing candidates so it's that kind of function sourcing candidates checking off criteria that kind of function the company does not designate or classify as exempt those are actually nonexempt position a record show what percent of the people in this office were classified as exempt first it's not exempt under the ministry of exemption i don't believe it does your honor it was a small branch office so i know there was at least one but i don't i don't recall if there are a few others who also work there i mean it sounds like home i mean it if this is a small office and then these are the people working there for them it sounds like with the exception of the first one there are all exempt i mean that most of the work that done there to produce the product for the client is is exempt the way you look at it i mean a lot of what duelling did doesn't seem to be terribly discretionary i realize that the plaintiffs have been separated out the various pla environment the way the office is run the hierarchy of the office what interaction each position is having with different departments within the client as you know that she is exercising discretion as opposed to that she just needs to know what the client need is she's exercising discretion to find out what the client's need is so that she can fill it she can make that match between the client's needs and what a candidate can bring to the table she actually testified that it was about knowing your client so they you could be a true business partner so that you could find the true fit so they your client would keep coming back to you so she explained that to make that match she used skills listed on an individual's resume she used and skills past work experiences other things that she came to know through conducting her own interviews with these candidates and through reference checks and then she presented these candidates to the client did she present just the best to the client or did she present be a ray of candidates who meet the criteria of the candidate of the client she exposure she presented the best candidates to the client and njt it with an s with an s in other words plural candidates later you're out of both was happening here so sometimes the candidate or skews nice sometimes the client would want to interview and so the staffing professional would narrow it to two candidates for instance sometimes the client would not conduct that interview ms lane for instance testified about twenty percent of the time at least she was making the selection and sending a candidate to the client who had never met the man ger and who had never been onsite would it make a difference if there was a supervisor within rooms who was evaluating the work of the people who are the plaintiffs here before the work was then sent to the client  that's actually the situation that was presented in a case we cited andre versus aerotech and the court found nevertheless that the staffing professional was exercising the discretion to find the fit even though the selection was going through a higher level manager and in that case that higher level manager was sending about seventy five percent of her recommendations on to the client and the court nevertheless found that that was sufficient x the a sufficient exercise of discretion an independent judgment and what court was that that was the district of maryland to two thousand and ten opinion my recollection and correct me if i'm wrong is that most of the cases here seem to be district court level your honor that is correct so we have a department of labor opinion letter that sets out the department's view of staffing professionals like the plaintiffs and then we have that standard with that guidance being applied in several district courts if i may talk about the opinion letter for just a moment in the department of labor and found that staffing managers who exercised a selective eighty and matching person seeking employment with the requirements of job  in deciding which client which candidates to send particular to particular employers exercised the requisite discretion and independent judgment to fall within the administrative exemption that is similar to what plaintiffs are doing here they can't the plaintiffs here were sourcing candidates they were matching them to the client's needs they were investigating what the client wanted they were going out they write down a fine candidates they were screening them they were interviewing them they were looking for the criteria and the fit if you will and then they were selecting the sales contests but according to the plane to were just added on to their regular requirements lot of discretion an independent judgment that also came into play with respect to the client development and sales function that a few of the plaintiffs were exercising as well i'm talking about the contests so contests about making  contacts or i thought that there was a contest that would take place periodically maybe once a quarter where everybody was required to make a certain number of calls on top of their regular duties and that was just it an added requirement in those were those were basically cold calls i'm not sure i and i recall the exact circumstance you're thinking of but certainly the testimony was that if i'm i'm making cold calls i'm identifying the people i'm selecting them based on internet searches based on my rolodex based on contacts i've made so the individual plaintiffs were selecting who to make those calls to if somebody is job is to submit a phone all day cold call and collect the prospects that this person is looking for a job this person has a high school education and sounds interesting over the phone in this and then i give a list to somebody that isn't in the straight of job well your honor respectfully that's not what the plaintiffs are doing here so it one point yes they have to make cold calls but the point of the cold calls is to identify and to develop a pool of candidates that they can then match with their clients so it's just simple is half the time was called cause and half the time is then matching would you say then that person qualifies under the administrative exemption i would say yes but again i don't think that's the that's not the record here the record here is that their primary duty involved the matching and so there are a lot of steps involved with matching the season with matching the position with the correct understanding is that the employees that were covered by that letter have full authority to discipline fire promote and assign tasks to the employees they supervises that prison here yes it is your honor actually i meant to correct that in the record as well because the plane is represented that the staffing professionals here did not have the authority to do that and in fact the record shows otherwise miscellaneous directing professionals are firing the people that they're recommending to the clients is that the way it works yes ms lane testified that it was her wrist she did have that discretion so it was part of her job to manage the people she placed if somebody called in sick they called her she had to tell the client hey that person is not coming in today she might have to send a replacement she was checking in with the client to see how her people were performing if there were issues it was her job to counsel and make sure that everything was running smoothly so she sorry that i missed this concept but the people that are being placed in the client are just temporary people is that right there are where i'm a lawyer client wants to control the people who are working for them i would think yes and i think the client is controlling the performance of of the job duties however the client in terms of who is showing up that day do i have somebody who's a good fit who can perform that job there's still very much a connection with the placemen agency if there's something going wrong with that temporary worker that workers are not performing he's not showing up he's not dressed according to standards anything that's wrong with that relationship and the client is reaching back out to the placement agency to correct it and the placement professional had the discretion to counsel and also to terminate she you rely on the testimony of these three plaintiffs for this purpose  sometimes the client did make that decision sometimes the client told her that the client did not want this person but then sometimes it was up to her and sometimes she was making the recommendation to the client about whether to give the person another chance about whether to pull the person and and supply replacement i want to just go back to what i was asking you before let's say you have a group of people who have been administrators who geisha and and once a month everybody in the office has to work in till three in the morning to ng inventory or some sort of clerical task but it's done at the first first of every month and people have to do this in addition to their regular but how does the law treat the words you know clearly not a discretionary has it's a somewhat regular part of their employment and it leads to a significant understand that but i'm giving you a hypothetical where there is a discrete task that's placed on top of the regular job so that you can see these are two clear clearly different functions and the latter function is something that requires overtime by definition and people are required to do it  discretion involve let's say clerical or administrative tasks again though that's not the record here and the record here is that these individuals were taking the steps to make the match and them stand that  i'm really driving if something else i'm trying to figure out let's say it was once a week they had to do this it's not their major test i mean that's part of the hypothetical it's not but once every week they are required to pull an all nighter to do you ever is or ever a situation where you would bifurcate part of the function or are you saying that once you're administrative is long is the employer doesn't impose tasks that reach to the point where it's a major port of their work or significant part of the we're the employer can require would ever they want and it's up to the employee to say no well your honor that's an interesting hypothetical it's almost reminiscent of like a dual jobs inquiry are you performing exam job over here versus an hourly job over there and what point do you cross that line and does the isn't there an answer to that i don't know that there is an answer to that judge here certainly the record is not that and the test replying here is what's the preponderance or the substantial majority is there some regulatory definition or is is dependent on case law i don't know that there is that a regulatory definition of primary duty the scenario we have here is that the primary duty involved matching finding the best fit and we're talking about a lot of prerequisite steps and a lot of exercise of discretion in independent judgment to make that match and to make that pairing to develop business and make the client happy a lot of follow up steps to maintain that relationship to build those relationships own and argued that there was a fact question that should be resolved in a trial that summary judgment is premature h employee spends his time is a question of fact but whether those activities fall within an exemption is a question of law here there's no dispute about how the employees spent his time or her time because she admitted to it in her deposition testimony and the question about whether those admissions fall within an exemption is a question of law which the district court correctly addressed on summary judgment any further questions what do these  for the application of the administrative exemption which i believe is around four who already have forty five a week maybe is the pre decided first requirement for fifty five a week about how an employee needs to go about doing those things it was an activity tracker that made sure these things were happening to encourage the individuals to complete their jobs because the records show how many hours these three people work is not your honor and do you agree that there was this periodic extra duty of on top of the hundred points of basically cold calling that everybody had to do on top of the no you believe the record reflects only very in frequent contests that were optional for employees to participate in to help generate sales for the branch  ultimate goal i believe so i believe they were contest so that someone could choose to you know go for the prize or not but they're kind of in the within the branch yes i believe we only know about three employees in the bridge cracked we only have here  suspect that she was testifying as to her duties as an assistant branch manager manager which we concede is properly exempt she also held positions multiple positions of the  that are at issue here we've presented record citations to the court in our in our briefs where the appellants have testified they had no right to hire or to fire and i suspect that the lane testimony relates to her job as assistant branch manager what are the factors speeds that need to be resolved here i can't figure out i know there's just agreement about how to interpret the exemption and screen all of that i don't  orders below but the fact disputes that would need resolution i think that we've we've touched on them today for example the the contests which my reading of the record shows they were application of the evidence but isn't that a legal question that's not you know in other words once we know that there were these contests and that's the only evidence that there is in the record then we can we're back to these contests means that they are exempt they are exempt i pathetically if that was such an important thing maybe you're entitled to judgments a matter of yeah i mean because your opponent said there's no fact question so if she's right on the law she wins if she's wrong on you and in my review of the cases and again this this goes to the prism from which you your view of this case whether your view of the thirty thousand feet are in the weeds and i think the proper places in the weeds the they there are nothing but district court cases that have reviewed recruiting cases recruiting  classification issues in my view is that the ogden case which is the district of arizona case cited in our recent not cited by rancid or or the district court provides the correct prison  legal no but but but in ogden what the what the court found is that the job definitions did not line up with things like the two thousand and five department of labor letter and required i think it was a court trial as to the implications of the fact that they denied summary judgment on the defense motion for summary judgment and found that the at least the application of the facts to the law in that instance required a trial and it seems to me ever heard of a case where there's agreed upon facts and yet it doesn't become a legal question at that point that's the way usually works and i think you know the fact that the lawyers aren't sure they remember the record exactly what happened doesn't answer it we can go see what the record says the record supports one side it supports one side  there's no doubt about it i think that the correct result here is a thorough hashing of the facts at trial i certainly have no quarrel if that and i understand the court's position that the facts are not in dispute the the court should also know that you didn't move for summary judgment below no no and what happened was  we moved in in conformity with the trial's calendar for conditional certification the defendant responded by opposing that and by filing a motion for summary judgment there was something like there were there was about a year left in the discovery calendar at that time and what they did they had already taken the depositions of the four defendants and they have laced their briefs below in here with snippets counsel deposition but that was it and one of the things we pointed out to the district court is that the the record is that there was a year left in order to come up with to to mature the record that concluded that was unnecessary thank you very much thank you your thank you both for the argument the case will be submitted with the court called the next case