thank you runners may please the court the court should reverse and want to cover to two items here an argument first the f l s a does not permit working our agreements that are reasonable here obviously the court entered in order that granted the defendant's summary judgment motion and it does obviously addresses all the federal wage and hour claims where it is a dress the state claims you raise ok so you say or you say they're not preempted they can stand a line where does the state court address that well let's start with the document i think your honor that you  referring to which is the written order at nine twenty four that's only a written order in the case and i think these are the key things judges said he grants that the defendants crossed not motion for judgment summary judgment and says quote all counts in the complaint are dismissed with prejudice and he directs the court to close the case now there were it was a four count complaint only one of the counts was federal so i think it's it's plain with all respect that he's he's intending to dismiss all four counts around things any doubt that he was dismissing it what i'm trying to get at is that just entering an order that says counts are dismissed where the court never addresses raises a question about whether there is a final and mamma whether there's a final appeal board i think it again with respect i think it it doesn't given what occurred here and if i might take a second and take take you through it there was a hearing on summary judgment and  j eight seventy one it line seventeen judge mrs he asked the defendant's counsel to address the state law claims if you were going to try to dispose the case based on the homework or exception so at that point judge said he obviously knows the claims are in the case because he asked counsel to address it then it eight seventy one through eight seventy three he hears argument on the state law claims and the defense of preemption  and then judgement said he doesn't get back off the bench he then gives an oral opinion and at nine o seven and nine ten he identifies again the facts that that there are state law claims three of them are two state law claims and really a local a local claim that's a nine o seven in nine ten and then it is true and i think this is what you're referring to judge g when he does his analysis he doesn't act illicitly deal with preemption but again at age seventy one through eight seventy three he clearly knows that that's the argument he clearly knows it all for claims are in front of him spoke question i mean everything you've said is correct it's on the record and that was my question is it never i can't find the place where the court ever comes to grips with making a decision on th and again i think and i think with all respect that's that's not correct because i don't think there is any doctrine that i know of that says in someone's giving it a speaking order which is what occurred in this case they have to address every matter that court is clear that it knows or think the claims are before it takes argument on it and then it's not simply the written order that i refer to i refer to the written order at nine hundred ninety four which is clear as day or counts in the complaint are dismissed court the clerk shall close the case but even at the end of his speaking order he grants full summary judgment to the defendant and therefore doesn't reach the partial summary judgment on the ground that you know it's mooted out so he says that the cross motion for summary judgment shall be granted and the cross motion for summary judgment of course was asked to all the claims ma'am if i might there is very little law i think on the topic that you're raising i think you're raising you have a speaking order that doesn't address the legal analysis of every claim but you have an order that dismisses all cons with prejudice i found no no authority in this circuit i did find that writing miller addresses the point at fifteen a three nine one four point seven and addresses three second circuit precedents which taken together i think support our position and here's what right miller says and in taking a look at those decision what counts is whether the court in fact intended to dismiss the entire action and i don't think there's any doubt if you look at what's at nine twenty scores the district court was wrong both on the question of done recently on this of the agreement and on the question of keeping time records let me start first but the question of the agreement or working hours agreement under s say most reasonably approximate the hours actually worked and provide at least a minimum wage the agreement does not do that for two reasons first a reasonable agreement must indicate the number of hours that a p compensate this agreement did not do that at least not on the defendant's terms of twenty nine hours a week but without that foundational requirement there is no standard against which to assess reasonable the remedy therefore is but the trier of fact to find that hours that ms bell bad actually works and require compensation at the lawful rates and that's not unusual that the cases in and the reporters are legion that's standard f l s a practice when they're that there's disputed facts and judges make judges or jury makes finding as to how many hours there were and then just makes the the road calculation so let me let me that's our our basic argument is the agreement it's just not reasonable because it doesn't state a number of hours but let me let me turn to something further let's say we assume counter factually that the agreement demands compensation of twenty nine hours and no more twenty nine hours w be on reasonable given the demands of the contract itself and ms about alvarez actual workload defendants don't dispute that she works seven nights a week that she manages the in social media presence that she did then i think it's clearly an resembles a matter of law but if as i say the going to i think what your first point was that we're arguing that alternatively that even if you accept that the contract seven nights a week that required her to do this social media task i think that at least to satisfy me you're going to have to address twenty nine or seven eighty five and i think you can do that but the case for the district court centered on that and so how this how that works here is then that let me apologize because in essence that's what i believe i was but i was addressing area to yes regulation we don't we know understand what your rights issue in is about how these all these principles were well the other but what seventy five point twenty three does is it presupposes there's an agreement about the number of hours says somebody for instance this court's decision fellow assumed it was really was forty hours a week well there may have been some weeks there were a little below some weeks a little above and in that agreement the the players were actually structed not to work more than forty hours well it's a it's a pretty good agreement here the agreement isn't doesn't stay twenty nine hours that's with a strike stand about the hours but i thought maybe i misunderstood your argument that in addition to hours you thought that the compensation had not been fixed and that you couldn't tell that well let me just say that the compensation doesn't have to be fixed by the agreement the compensation is a matter of law seven dollars an hour nine dollars an hour and that's my second argument if you'd like me to turn to it about counting the room and board but i want to you know that's the question of compensation in the case but here we're talking about our remit about how much the lodging is wor right there that absolutely right in at least eight cases we did have that agreement that that is true as well so that that's the but that is true as well that's that's another basis say can't what they have said the lodging is worth is what they could rent it to somebody for a low they didn't run it very often because we know from the record that this hotel doesn't have a very large occupancy we are one how do they never run in the room in the basement you're on i'm not talking about the room in the basement they talk about it's bigger to get you know the i who have all these fight about which room is bigger but there are other rooms and they say what the what the compensation was was the value of the room what they could charge somebody for rental of a room in this hotel and what they could charge somebody for breakfast in this hotel which was seven dollars a day and that's what they got for the figure for compensation are you not challenging not to we disagreement about the compensation in those case that is correct there was no disagreement in those cases about the room and board if you'd like to that is correct there was no disagreement in those cases and there is here argument was that is correct that is one of our arguments and that also that that is the argument and have argument are you right yes that's correct and that argument is even assuming the twenty eight hours is correct you can't count the room and i'm bored for numerous reasons one there was no record keeping and there there's a regulation that we choirs record keeping in an unbroken line of authority that when there is no record keeping you made our count room and board that's point one and second even if you assume that we can overlook the failure of record keeping the problem here is they use these unproved inflated numbers that include profit have to do with what they could rent to upstairs out of their evidence comes that that is correct that's our principle argument now but our secondary argument is that even even if you overlook the regulations and the authority that requires the record keeping here it wasn't just you can't use this type of evidence because the regulations specifically say that you may not include profit that the only question is cost to the employer and the basement apartment impose no cost to the employer they never rendered it out in fact they admit at several places in the record take a look for instance at j four thirty one that they had no permit to record out so there was no opportunity cost there so again let me just repeat two fold argument one is that they need records they can't counter at all but secondarily they never prove this up and you have to remember that what is the correct resolution when the correct resolution is if under are the first argument that we made correctly solution would you say that this is in a reasonable agreement reverse remand for determination of  what her pay should be for all hours actually worked secondarily if if you don't adopt that argument and we believe it's a strong one then at the very least the court should determine if there are disputed facts as to whether the agreement was reasonable then that should go to the trier of fact and third even if you assume this is a twenty nine hour agreement then there should be a  bell bed the damages exceed me the loss of wages and she is entitle to in light of the fact that you cannot count the room and board because it is undisputed in this case if you do not count the room and board she was not paid the minimum ok thank you all accounts in the complaint with with prejudiced and therefore ended the litigation and as council know there was discussion at the hearing regarding the state law claims was also sensor briefing to state law claims as i do think that order agreement between a living employee and employer that agreement controls basically entire relationship in terms of what hours the employees required to work and how much compensation an employee tells you now district court agreed that the agreement provided for twenty nine hours work so that was never disputed and numerous representations regarding that which are cited to in the brief so both know it's here somewhere provision is to specifically address this type was this a fake unique situation where you have a live employee living on the residence which maze a difficult if not impossible to actually keep track of the hours the employee is working or not working that the very purpose of that seventy five to three is to address these situations and that's what allows you to enter into a reason agreement which is different from every other you know sort of employment relationship or employer employee relationship this is very much you know not the norm the norm is you have to keep records you have to keep track of the hours so this is a very unique situation only applies to living employees and the reason why all the cases that we seventy five point two three does not any were specifically incorporating a record keeping requirement and again the case is set forth that the whole purpose of this unique regulation is because it is difficult job possible to keep track of the hours be worked so that's the reason we have the regulation the first place is because and that the regulation does specifically recognize that in this situation it's difficult to keep track of hours and that's why it creates this exception to allow a reasonable agreement to there isn't agreement here as to what the compensation once you put in the fair market value i guess of the room and lodging but that's not what the use in turn to mean compensation that's that's just not proper i'm sorry what are costs to you it's not what your profit would be what actually in the miers case the court did use the rental value of the propert requires she answers at a minimum if you look to the right of the column which is on six eleven with the guest room etc there is additional time that would be required for checking and closing so they ambiguous number of hours that might be required so i'm not sure i could say that that was a concession of twenty nine hours seems like it leaves a fairly open ended and that i take it as part of opposing counsel's argument that if the agreement is to be valid for purposes of the regulation you have to have a determinable method of figuring out how many hours there are so it looks like to me when you look at this on six eleven it's hard to figure out how many hours there are a couple things that are there is no with talking about your representation that there had been a concession here not a determination of reasonableness by the district court maybe maybe it's reasonable maybe it's not but a concession is different than  determination but this is our court certainly and i was going to so i won't point the only other additional time is the check and closing with respect to check in time the only evidence in the record was from  argument here that she had to be available to checking whether she was checking people in or not and they meet some district court you've made an assessment of how much of her time and much time should be given to that activity i would say that the there was testimony on that issue in the testimony was that it took less than five minutes and i understand you understand that you might have to be waiting in and you don't know what customers coming down the road well  improper it's not improper in and of itself to agree to well i would also argue that she never controverted that evidence that was put in the record with anything so essentially she has conceded or as least where the argument as to it because there was never any things not that's not it no no the value there was based upon two things one was miss weekend days fourteen years of experience renting rooms in the area and in the end and the second was yes of the room that the  to use the value rental value i still think the court of meyers would not have used it even if it was not contested it was a dispute about i don't think it helps with respect to the other right two or three yeah that's not was being done here that's that's what those actual costs regulations apply to they only apply when employer seeking to include that facility cost in the wage of the employee has a credit and again that's completely different this one final question if we should decide that and i know this isn't your position i know you don't agree with it you know you can get to make that call that the recordkeeping regulations get applied to you and that the compensation was in dispute and that there was no and that the compensation that was arrived at here was unreasonable and that the hours were not  deter you were determined to anyway what would what would be the resolution here i know i understand that we would reverse and is it impossible for  do we just give her whatever she claims what would you would you suggest we do what we would order on remaining obviously that's a pass on this but i'm giving you an opportunity to give us your views if you don't want to give them that's fine i guess the only thing i would say which would practically be a non sequitur was a go back to the regulations say this is the point of the regulations to understand you do understand my question we've rejected that argument and now i'm giving you an opportunity to make to say what you would say to the district court how should the district court proceed then we will be telling mr court to do something i'm asking you for your input and if you don't want to give any fine twelve hours a week and yet it seems unbelievable but then the other hand the your claims also seem unbelievable that what we're trying to do is get away quick and looking at the hours required in the compensation provided and i think the district court did that it looked at all they looked at all the facts he looked at all the compensation the hours required and the case law and said yes mr graham is reasonable as you just the statute does it gives the district court that in her deposition that would impossible for them to know when she was working and when she was not working she also admitted to doing various sort of personal pet projects around the end and again this is why makes it so difficult to live employed actually keep an accurate  record of their of their hours working she did various sort of call them pet projects that she you know even included making hollerin decorations as she said she spent hours every day for the better part of the week doing these were things that were not required of her by the agreement or by the in she was never asked to do them i would also note as near in the brief that this it was vacant more often than it was occupy the majority rooms were vacant were often those occupied  not a busy business there was not a lot of work to be done and so again it's unreasonable as a matter of law to expect an employer isn't to pay somebody fifty hour sixty hour seventy hours one hundred  hours for work for him that's practically or vacant more often than not that's the kelly case from this court which stated it's not realistic to assume that the employer would employ someone for sixty nine hours per week or by incurring but also want to note as noted in the briefs that the standard for whether or not their rooms are sufficient is whether or not they provide adequate sleeping facilities as noted by the eighth circuit in the chart case sleeping facilities  adequate as long as the employer first employed with a separate sleeping room which allowed the employee to sleep through the night again the appellant was provided with a queen sized bed room with a probably bathroom window said i'd like to start off were judged just last question and you know what can be done on on remand if there is a rebound and or i'd like to say on that there's obviously disputes as to the number of hours of actual work if i could now i do want to move the company scuse me what about the reasonableness of the compensation and the lack of records i think the lack of records means they cannot count room and board for the reason stated in our brief  that but i think that's not permitted that would be barred as a matter of law because they'd failure to have a right tempering his record keeping yet that's right it's the policy the record keeping requirements but i do want to state and then i'll move on which is that the principal there wouldn't be a seventy five point twenty three agreement they're just generally binding applications for how one calculates room and board and what the record keeping requirements are to do so if i might i want to turn and just give you citations if i make this judge a j you asked about the question of this purported concession on the twenty nine hours we take it up on page fifteen of our reply brief and in footnote five and i just want to add one thing  because i don't need to read it to you but i want to add one thing this was on they had the burden on their motion for summary judgment we cross move for summary judgment simply on the limited theory that even if you did think of this is twenty nine hours they hadn't paid the minimum wage because you can't count room and board but in other places in our memorandum we certainly said that wasn't a reasonable grima and therefore you had to calculate all hours worked i do want to the question i think that is implicated by a colloquy the judge much was having with my posing counsel which take a look at seventy five point twenty three not only is it not about counting room and board at all and it's only about hours but it says the following ordinarily the worker main gauge a normal private pursuits and thus have enough time for eating sleeping entertainment and other periods of complete freedom and that testimony in this case is undisputed that every evening seven nights a week she did not have periods of complete freedom not only was she doing all the other tasks such as the social media activities and repairing and cleaning but she was required to be there she didn't not only didn't have complete freedom she didn't have any comfort at all she had to be there every night till ten o'clock just like the person who sits all night at the holiday  if i might just want to this goes to it question us judge floyd there is no question that the hours works regulations at seven eighty five  including seven eighty five point twenty three cross reference the record keeping requirements there's an explicit cross reference we cited both in our opening brief in reply brief that would be a nonsensical cross reference if the record