i'd like to start with a brief overview sort of to review the bidding in terms of all the different arguments we've offered as the court knows multiple arguments for overturning the summary judgment in whole or in part and as the twenty eight day letter indicates dynamics and vasquez we move one hour from our quiver together they establish that plaintiffs are not independent contractors for purposes of their claims based on california w orders all of our other arguments however when man alive or any of those other arguments considered by the district court they weren't because the court wasn't didn't have the benefit of dynamix right well now what you're really saying equivalent to federal law not not the new one the dynamix comes up with yes yes so why don't so this is my short question is why not on the dynamics issue simply say we've a new law that's been said to be retroactive we don't know on the facts of this case who wins or loses under the law district court go back and tell us well i think your honor that  get back in the same place that this records opinion so clearly gets out ahead of itself and decide issues of fact and issues of degree that the outcome would be a foregone conclusion if we re case it's just going to come right back and say we're always here we are our business is open so the fact that a case may come back after we remain and it isn't a good reason for us to take up issues in the st instance is while some of the issues are and hardly independent i mean that the one thing that's not going to happen is that just requote skin to suddenly say things got better for you guys and now we're going to have a trial and i was so i think what we need to do is i need to do is to explain to you why it was error for the court to decide these issues for itself i didn't know what i'm conceding for a moment that the court applied the long you know we agree that under diamant dynamix wheat argue the independent contractor point there for the wage earners so we're saying it doesn't apply to the non wage  for that it's the same analysis that the district court actually applied and then there's a separate inquiry the and the in the that the joint employer inquiry which remains alive and which we also california claim they ignored that initial employee independent contractor issue and went directly to the joint employment issue that's a mistake from your point of view common to both and you want us to tell them to tell  side you're saying there's a question of fact that calls for trial multiple questions ok so if that's true aren't there questions of fact the call for trial on the other side absolutely so i whether or not the technicians are independent contractors for purposes of federal law and the non wage order claims if so whether or not direc t v is their joint to take this has to go back to the district court if they want to argue to the district court they get summary judgment under dynamix so be it we don't have to give the district court advance shore advice on that so that to my mind that takes time to max out of the equation and now we have to turn to the eff to the federal claims so why is there a question of fact on the federal coffers ok so i'd like to make one big picture point and then get issue there are basically three different tasks year there are any questions of actual historical fact or inferences there from of course have to be decided my my metaphor for you if you will is an equalizer from a stereo where you have all of these different you know knobs and they slide up and down and they and you can move  anywhere on the spectrum and the question of where the facts place a particular factor in these multi factor test test is a nd task task and we know from the decision in ryan which is cited in our opening and reply briefs that when you have these multi factor tests and you have disputes over where on under no ryan and this is basically this court adopting what judges the brook had said and occurring in a concurring opinion once you know that there are these factors that have to be resolved by a jury you throw the ultimate issue to the jury too so at the end of the day i'm going awry and so long as they're acting either disputes of historical fact or and or disputes about where on the spectrum what degree of control for example which could be some zero to ten in any particular case and all of these other multi you know all these other factors those things have to be decided by a jury  r the right and then because they do you throw the ultimate issue to the jury as well and when you say the ultimate issue you're referring to the totality of the circumstances part of the analysis is a correct answer so i might my sense of the case is that there really aren't a lot of disputes about historical facts i mean the question of what the installers what kind of do they have to buy tools to do this own work what cut what do they have to wear when they carried out the job and that kind of stuff doesn't seem to be in dispute it's really how that all comes together under a totality of  say for scheduling they say it can be used you know to determine whether these technicians are working overtime and whether they're being paid properly and if it affects multiple factors and shropshire they made it so abundantly clear that they reassigned or chorus all the time they only one of them said right now i don't think there's any dispute in the record that work orders are reassigned i was trying to ask a different question is there any dispute in your record about whether an id they can they're reassigned because an individual technicians as i don't want to take that particular job absolutely well basically what they do is they just don't acknowledge it right specified to a specific technician correct they said we all know they send them out when the technician says either doesn't respond or says i'm busy today or say there is your evidence in the record of what happens then yes that's exactly what they said is we will reassign them if they do not acknowledge them that's how they basically understood that the other side put evidence in the record from people who said look if you turn him down you get fired you have to take  so it's a thirteen to one disparity which i think is a very compelling indication that this case should never have been decided on summary judgment there are just too many matters of degree as your honor said plus these historical facts in not going through this to step in now is to step in i was st we have employees independent contractors if an employee has a joint employment but that there's a certain so common sense justification for what the court did in the sense that it seems to me there is a lot of overlap in the factors that one can identify in the employee independent contractor terse and then when the joint employment assuming that they both look at the nature of the work that the individual does they both look at the relationship between the individual and the employee in entity so if there's so much redundancy between the two why why go through that two step in their offices well i think conceptually it's clearer and it avoids the kind of analytical errors that the district court made by combining them if it were if it were the case that you were clear about you know who you're focusing on for each of these factors and you're getting it right you might be able to combine them but i think what we had here was a conceptual errors about you know we st were looking at the  technician in relation to the contracting company and how much freedom of action did the technician have these are the contracting companies but then we're talking about you know how much control the directv have and it seems to me it's just much simpler to say how much independence does the technician have let us figure out st whether that person is an independent contractor once we know the answer to that question we can then say ok is directv his employer now we focus on how much control was exercised by directv as opposed to the council if for example the question of how much freedom does the installer actually have in assessing that don't you have to actually look at the relationship between direct t v in the contracting companies because i think the argument is that direct t v is essentially telling the contracting companies how they are supposed to relate to the employees so it seems like it's a it's a kind of odd abstract exercise to include direct to exclude direct t v from that control and the analysis is an initial proposition well i think if you look at it from the perspective of  the technician you could take into account you know what constraints have been placed from whatever source but then you have this sort of separated out because it could be that those constraints are actually imposed by the contract think the difficulty and i take your conceptual point it makes a lot of sense to look at this and say well if they're not employees of the contractor they can't be employees of directv but if we have if if combining everything together they have all the attributes of employees they're being told then it seems to me i'm not sure that i need to necessarily conclude that they were employees of the contractor but more  whether they were treated as employees and if so whether they were subject to direct t v s direction so is it a necessary on our sister just to useful in ours i would say it's useful so long as you are sufficiently clear when you're providing that because usually she said something would have made some sense to me it makes conceptual sense to address it in two steps but it may not be necessary your fear was that because the district court didn't address it do fundamental problem you know if we have to have a single set of fifteen factors as a test you know we will live with it we think it's better to separate them but i think the bigger problem is that these things and i'll tell you why the reason is that the supreme court the california supreme court decided martinez against holmes in two thousand and ten in a nun's enunciated the sufferer permit says we don't find facts the district court never considered this test i have no then under martinez against coming to the district court the side where gene is against holmes was a case where they announced this oh no but it made to test quite different you're going to test the test is now three specific  separate language hasn't really even been interpreted well respectfully martina's against holmes decision did and then say the software permit test and what happened was that people argued that it was way too broad so in in right that there weren't that many disputes of fact and here are some of the disputed facts they were the face of the great t v they were an integral part of direct t v s business they did the same work as direct t v as employees technicians  direct t v had to specifically authorize each individual technician before he could do work for direct t v these technicians in the senate steps that's not true they had to ok i had to have training that was approved by direct the assignment could be given by the subcontractors if you will the good word by the other employer and your theory to anybody anybody who met the qualifications for directv correct but assign it but they couldn't do any direct t work unless direct t v specifically authorized this particular person to do work so could each of these people do work for other other contractors it depends on whether how you read but basically really there certainly haven't instead they  the there's certainly evidence that they could and did but not as part of their jobs through these contracting companies right so you're argument is that they were employees only to the extent that they did work for directv but they were independent contractors otherwise no we don't lend that they were independent contractors otherwise we claimed sure they might have had one up jobs where they were moonlighting with or twice you can have a nd job when in fact nothing in there nothing in the arrangement here prohibited that did it did actually in the s p a there is an exclusivity provision and it's a that's for the that's for the rd party contractors there's no exclusivity provision for the technicians is there yes because the way that we  its employees well remember that they're not recognized as employees number one much like the paradigm of a big well you're saying they are though so tell me you think the word you think that this word affiliates which one would normally use to it into its in subcounty actors to combine ply with and abide by the terms conditions and restrictions opposed upon contractor as set forth in this agreement including all attachments and exhibits related there too so every obligation of a contractor also applies to the sub so if the sub contractor in this case the contractor a rd party contracting company hired a plumber to do work for directv well that's not bad you should read it in the congress  yes yes your honor because this specific paragraph is talking about hiring sub contractors to perform services under this agreement and that's what that's what some contractors means in subcontractors therefore may only work for direct t v is that what can't do it under this agreement and because of it if you hire any subcontractors the sub contractors have the exact same obligations so there they are bound by exclusivity in the contract and the evidence is in the record that i think you're confusing me because your argument is that they're employees not independent contractors so how can it be said contractors well they are considers of contractors in the terms of this agreement they are they aren't actually recognized as employees by the wrecking company what they are done is that they are called so contractors and that's what the contracting companies called and directed his position is that they're not that they're independent contractors right so these people are not getting you to use for just safety or or these these certifications there's no qualifier it says you have to receive an approval from directv which you prove what may or may not be granted in direct to these discretion and in direct district court a finding on this issue as to whether the individual installers are free to work for competitors a great t v i think the district court said his and greg i mean i may not be correct on this but he noted in credited direct t v s evidence that there were technicians who did other work yes but he said the contracting companies are bound and i've been that and i think that was an astute observation and that the contracts clear and that the contracting companies are not allowed to work for anybody else so but you're not if this is not a case about whether the contracting companies are employees there's a case about whether the technicians are employees say so the fact that the judge recognized that the technicians were did work for other court find that they had they they had in effect two jobs i just don't know what your characterization of what occurred here but they did this report make that finding that they were employed by directv to the extent they worked for directv and they were not employed by directv to the extent they work for other folks i don't think you need that explicit that's fate i guess we spend a lot of time of it just for the freedom that they had if they had such freedom to work for other other to work for other companies on an installation i mean that's that's very that's an important that's an important fact if you will on the employee independent contractor issue and it sounds to me like the competing arguments indicators a disputed fact about that which would suggest perhaps of summary judgment picking on this issue was was it appropriate there's a dispute about well there's not a dispute about the number of jobs that were done they it's undisputed that they did one or two jobs during their entire period of working with directv as a percent body else every and every individual right there's no evidence that any of these plans the any substantial work for anybody else there was like a job and somebody helped out of the gym or there was other other tell me about the unfettered discretion to hire and fire they many people give their independent contractors specifications so i'll hire you to be my plumber but before i'll for you send anybody to work for me you know in my jobs who may be independent contractors i want to make sure they're certified and gone to school and meet a drug testing program and i've designed all these things does that make them i mean does that make them employees well th difficult question isn't difficult concept as we as we pointed out in a reply brief i mean what does this even actually mean that the economic reality of of of the situation means that they were depended on directly for work it is a difficult  contractor that the rates they would have and there's some evidence that some contractors either kept a little bit of it for themselves and passed it on or in one case for reasons i can't possibly understand the contractor paid more than what directv gave them me i don't think so i think as this court recognized and by now that it just means that the contracting companies or join employers right remember that and the whole against direct t v case that the four circuit considered it said look if we're going to engage in a joint employment analysis where we consider the joint employers one employment the st thing you have to do is see if these guys are joint employers and if they're joint employers then you see whether they are to pin it on them in the end it conceptual you know were coming it doesn't matter which will become of this you've got to be an employee of somebody to be a joint employee don't you that's right ok so who and and here what you're saying proposition proves too much whenever i deal with an independent contractor i pay him a specific amount that of course may may have some effect on what he's willing to pay his employees but it doesn't make them my employees well your honor when i say to the  nd guy you decide what to pay the technicians i don't care you can pay them twice what i gave you you can pay them halfway give you does not suggest that they're not my employees it is it is certainly a factor to be considered within the totality you know if we have that factor material facts in dispute then he sends those facts to the jury so let's assume you have no undisputed facts fifty percent of them come for their side fifty percent go to your side there's the judge decide to cases a matter of law or does he send it to the jury i'm sorry you said it will resume and so you know undisputed facts everybody agrees on the facts a lot of them suggest that they're independent contractors a lot of them suggest they're employees does the judge decide to case as a matter of law if there are no like think of another questionable which is contract interpretation some sort of so in judge here which is hypothetical he says you have an speed of historical facts but you've got some factors in these multi factor tests to seem to favor the employee conclusion some favor the independent contractor conclusion so you've got factors pointing both ways you're saying i think i mean that's a took that the ultimate determination is the the circumstance you seem to be saying that's a question for the judge to decide not the jury it is a question for the judge to say because it's a questionable even if it's a difficult question it's still a question of august like i was going to get you with that interpretation of  contract it can be difficult to understand and figure out there could be good arguments on both sides about what this an individual's contract me so you're but it's still a question in your view that in this case on this record the judge was permitted to there at directv no to all these other cases about the cable and sellers but none of them had this record none of them had a situation where all of these factors facts were true and undisputed that directv had the undisputed unfettered right to hire and fire that they were the face of standards and monitor them all keep thinking as i hear of judge or laws question about what the special verdict form might look like and in a case like this when you practice in this field due to juries routinely decide these these kinds recognized that this is essentially a factual question but that says that what the legal effect of the facts are is a legal question because we're trying to figure out who is supposed to be encompassed within the statute  principles of the contractor specifically said that they are technicians were permitted to and did work for other companies including dish network in the case of one of the technicians for i think it was empty and it's the amount that they chose to work for the other companies st of all it's in dispute how much they did but i also think it's a relevant they had the option they had absolute freedom to choose what the best jobs were for them in terms of maximizing their revenues if they were going to get more revenue from doing an installation at dish instead of at direc t v then they could take that charge so that actually