overtime was stated another way if a work week changes only applies prospect of late can it ever be a scheme to avoid the overtime was or is it always legal the defendant raceway associates in this case change the plaintiff's work when the change was apparently permanent and it allegedly applied equally to all the employees the lower court found that the change was made to reduce or eliminate the defendant's overtime i've legations up and this m so i say again does this change in the work week violate the overtime law because it took away the strict perps ability to earn overtime or is it permitted you know is always ok as a matter of law mr curbs worked as a part time security guard at one of the defendants l a racetrack starting in two thousand and two the defendant what the track in two thousand and seven is my voice ok good yes thank you the defendant sponsors bracing events sprung from thursday through sunday and they do not occur every week out for a given racing event the defendant will fire between as many as eight hundred part time security people to provide security during that or day racing about these security people will routinely work between sixty and eighty hours in their four day period from some time prior to two thousand and two and i cannot tell this court when it started until either two thousand and seven or two thousand and eight  consistent he's consistent with what change has been made now the words you know this is does the employer not have the right if it was monday through sunday and then he would decide to change it to tuesday through monday doesn't he have the right to do that absolutely judge he absolutely has the right to change the word when this is a new employee or is that foul of the policy for which the order over time status were written the policy behind it is bring economic pressure on the employer to hire more people for example an employer in this case  a choice of hiring two employees they each work forty hours a week they all straight time or one up or hire one employed were eighty hours a week and paid employee forty hours a time and a half so the overtime laws were written in large part to bring economic pressure on employers to hire more people and this instance i would tell you that i would say to the court that the change that we're talking about frustrates that policy the change in the work week and an employee's ability to earn overtime working you know going prospectively the five cases that the defendant has relied on in the lower court and has relied on in this court none of them involve a change in the work week so i would say again to the court yes you can say work week however you like it and normal work employees do not have the right to have their right to overtime maximize but what they do have is they have that previously say people will work a large number of overtime hours and people who are not able to come in and work those hours it seems just contrary to what they have not created an incentive to hire more people the same eight hundred security people are going to work these long hours where in fact if they if if the defender was told this is an illegal scheme because you're baiting overtime rather than have eight hundred people they might have to hire twelve hundred people or sixteen hundred people to keep everybody's hours down according to the old work week and and pay them all straight time no overtime so i would was to bring pressure to hire more people right so the effect of the new scheme is to hire more people therefore why is it not in that appearance with the overtime i'm and i apologise for the the disconnect we're having here but it would seem to me that if mr curves was working eight hours under the old scheme eighty hours under the old scheme and earning forty hours of overtime the employer the defendant here would be motivated to either mr kurtz and somebody else to split their eighty hours into two employees but they got better as they have countless the same bag by splitting the work week which i think is it rather than encourage them to hire new people it encourages them to figure out a way to avoid paying overtime so they don't have to hire new people the class you are a legend after is not we're not going to be able to earn the overtime they previously attacked that's right and there's nothing in your complaint about  you know that underlies the overpriced if it's in the first place was really developed when we were briefing the motion to dismiss mr kurtz came to us we did the research and you know may be changed if the change is intended to be permanent and is not designed to abate the overtime requirements of the at and i would say to the court that is exactly what this was intended to do it would be overtime apartment's of the act by making this change the company went from paying overtime whenever anybody worked over forty to never paying any all right over time and i guess the real hire in the other people that's right more people that would solve the problem well what do they do if you if you if these people have to work eighty hours to do that you get the job done in any given period of time and it takes instead of having one person do it here two people doing it each working would that would solve my you know i think that would be consistent with the law and with him i think what you're saying is the employee gets to run the show and that's not the case is to see employer decides what the work w i guess the question for the court is if you change the work we must add is it only a violation of the overtime statutes if the change is any change the schedule that only affected work prospect a plea was permissible under the overtime costs and i would disagree so for those reasons i don't know what my time was like but for those reasons i would i would tell court it's really not a lot to be said here either does or doesn't buy prospective play you know they made the change plaintiff had been working there for five years making over time they made the change it lost the ability to work overtime and they die and they had no incentive to hire a new set of people and perhaps you know that is more important or more to a greater degree today because you know we just now got a point down in one percent i saw allow savings to itself what's improper about that specially during these economic times and well especially then that was worthwhile and that's where i parted company with the lower court if it's doing that just to save money it's frustrating the purpose of the overtime statutes because they can say the same money by hiring more people the decision it has made is not to hire more people but to rejigger the workweek to avoid that if that is the reason that he changed his work which was to save money well here where you see here respectfully if they're saving money by changing the work week rather than hiring more people i think it runs  permanent and is not designed to evade the overtime requirements of the hack and so we come back to where we where we were a few minutes ago are you saying that it is not possible for an individual to get overtime even under the sun at this new w well certainly not for the security guys because they don't run a race of benson consecutive weekends there's like sixteen or eighteen of them a year i think something like that so you're saying that if this was a a business either th sort of an odd case just because you have heard time people working very long hours sporadically you know it may well be the catering companies would fall into the script too i did make a study of that but i do think that's why there are so  for this reason judge we have filed an amended complaint seeking overtime for the limited period that we believe the change was made if the change was made and we believed it was a life so the time that had already been wor but if you took that claim against the hole it was so small and it was going to take so much time that we discussed it with our quiet on the side of the for the few dollars that we were really talking about there we would simply dismiss said so that we could right the claim that we're talking about scoring was dismissed with prejudice in the first hearing we asked for leave to be lead to plead that small plane just right we did so i later decided it was going to be occurred in the original complaint they had made the more global claim facts on an employee or an employee or could not make a permanent change in the beginning of a work week if that change had the were that was the one question that was in the original complaint whether or not the employer could permanently change the work week if it had the effect of the knitting or potentially limiting the amount of overtime compensation an employee could earn during the new work week council had raised the issue during roe argument as to whether or not during that time period where the burke week was changed in two thousand and seven whether his client and potentially some others had worked some time under the old work week for which they had not been compensated in the process of changing it to the new work week that claim was we moved to dismiss the amended complaint and council decide it's voluntarily dismissed that claim so the claim as to any potentially earn but unpaid overtime under the old work week is not before the courts today and  and so again the so question presented in the complaint that's before the courts is whether or not that change to the work week as long as it's permanent and it's intended to be prominent that the plaintiff theory is not supported by either state or federal federal wage and hour slots it's our contention your honor that the intents of the employer in changing the work week is not a relevant consideration on tell the plaintiffs has shown that the over time requirement of the law have been violated those are two different things over time requirements are very different from an employee's ability to earn overtime compensation there is no requirement that an employer must maximize the amount of time that an employee may be able to earn over time there's no requirement that an employee's employer structure  record there are several overtime your requirements your honor that are listed in the department of labor guidance regarding the act those requirements include that if an employee does in fact work more than forty hours in the established work week they must be paid and they must be timely paid for that overtime at a rate of one point five b so then if the employer makes it impossible for anyone to work more than forty hours by cutting up the week according to because the scheme of the of the racetrack busy hours of the busy times are  had variance with the way he cut up the week the news that night violation of the overtime requirements no one can ever make overtime no i don't think it is your honor because i don't think that there is any overtime requirement that that requires an employer to offer overtime it only requires the employer to pay the overtime if it is in fact earned so case in point where they make it so that it is impossible to be armed it is that not a it work week establish a work week where in their employees are not forced to work more than forty hours are able to work in a seven day period a forty day period and have a life outside work whether that seven day period overtime i don't think it is your honor and i certainly don't think that if you wanted to get into the effect of the change as correlating to the requirements of the overtime act number one i don't think that that leak has been adequately played in the play the complaint but regardless this is one employee who works in one portion of this company who just so happens that his work week because he's a temporary employee has been changed to be consistent with the work week of all other employees and that had the effect on this employee of not allowing him to earn as much overtime he still may turn over time i think that's yet to be determined on he still may earn more then or he still may work more than forty hours in the newly established work week there certainly are other employees of the corporation who very well may be working more than forty hours in the established work week as long as the company is paying those employees for any additional time worked over forty hours at the rate of time and a half that is consistent with the overtime requirements and i think the case your honor that you mentioned the city of rome case is a perfect example of that in that case the employer the fire department had changed the structure of the work week so that the employees were working twenty four hours and fifteen minutes any shift because they had to do their change of pose and whatnot and that took the additional fifteen minutes but because of the way that they had structured the work week there's that extra fifteen minutes although it was fifteen minutes longer than they previously had to work under the old regime was not being compensated well and we all employer was changing the work week every other week to you know accommodate certain things that were going on in the company's business and make sure that you know it was a frequent change though that one week they only work forty hours the next week they might work sixty hours but then they change that work week to be tuesdays monday to make sure that that following week was only forty hours as well if it was a frequent change like that that would be violating the overtime requirements because they are putting in place a plan that will be private the employees of earning dhea are being paid for the overtime that they burn under their established work week but as long as the work week is the status and at the intended to be permanent and it applies across all employees at the same rubble that does not violate the overtime requirements of the act we we do believe that there are a few analogous cases and situations th during the work week established by the company even though this person works seven days in a row five of those days were in one week work week and the next two days had fallen into the next work week and he claim consecutive seven day period in which i work and because i worked over forty hours during that consecutive seven day period i should be paid overtime for those additional two days and the court rejected that notion and said now become pop the company has established a work week that work week happens to have five of the seven consecutive days that you work all into one work week and the other two days fall into the next and even though that deprives you from the additional you or forty hours that you may work in those other twenty two days that's permissible because you have to work forty hours in the established work and i think you know those comments by the courts there were similar comments echoed by the adams courts and there were even similar comments echoed in the city of rome firefighters court by the that court all those courts recognize that an employer has an absolute right to change a recipe as long as it's an tete intended to be permanent and as long as it doesn't eat baby over time requirements and the requirements are very different from an ability to earn over time there is no requirement for an employer to set up the work week that will maximize the overtime that an employee can earn there's only a requirement that the employer pay that employee for any overtime  during the established work week reasons number one i don't know that there can be a you know interpretation of statutory law that can be applied on an ad hoc basis like that i think there has to be a consistent interpretation of  prevent an employer from changing a work week to even raid or up prohibits him an employee being able to earn as much overtime as he or she was able to earn under the prior work week they would have stated that it's a very simple thing to state in the acts but you know as you pointed out your honor there are economic circumstances that different employers have to take into account and those economic circumstances can range from a struggling company trying to figure out ways to stay in business and continue to employ the employees that are currently has and reducing its expenses and it can range to administrative issues where if a new company comes in such as illinois speedway takes over tracks they don't want from an administrative h r standpoint several different pay periods by which they have to be doing different payrolls keeping track of who's work weekends when when that payroll period must be paid it's perfectly logical that a company who comes in and takes over a new business whether it's a subsidiary business a racetrack in this case whatever it might be would want to standardize things to make sure that the entire company is standardized from an r payroll perspective so there is number of reasons why a company may want to make a change to the work week but you know that's getting far beyond what either was alleged in the complaint or what needs to be decided here because i don't think that the intent or the purpose for the change is even relevant here as long as it does not evade the overtime requirements that the company is paying what is due when the company when the employees work over forty hours in a work week and as long as that work week change was intended to be prominent and as they allege in the complaint it clearly was it was made upon illinois speedway coming in and taking over the racetrack and this remains today so you know that's four years later it's still the same work week and so clearly was a permanent change it does not evade the overtime requirements there is no allegation before your honor's that the company did not pay for overtime that had been earned under a road week that had been established and therefore we believe that the company has met the requirements of the fair labor standards act and the  that the defense relies on the net provide for an absolute right to change the word they stand for the proposition that they have an absolute right to set the work we are with which i agree i heard moments ago that there might be legitimate business reasons for changing the work week like a variety of pay period being standardized yes no it might even be valid but would not support the dismissal under tos six fifteen as a matter of law that would seem to me to get into a passion like bahrain as to why the change was may i would like to spend a minute with the wrong case too because the prime case that is in fact say the city candidly admits that the only reason for the extension mess to take advantage of the provisions allowing the doctrine of the eight hours per shift for my worst work so as to avoid overtime payments this morning in itself is not improper now they say that but i would ask the court to see to actually let the what the court has after that what the defense did there was if you're a firefighter in rome georgia and you work twenty four hours to get paid for eight hours of sleep time if you had fifteen minutes which is what the defense did or the defendant that then it's more than twenty four hours and they don't have to pay the eight hours of overtime to sleep the court did a couple of things they said well you gotta pay him for the fifteen minutes because they were even trying to get out of there on the on the ground that it was a at the minimum sufficient of the tour and so they could have the fifteen minutes to take advantage of more than twenty four and then not pay for it besides and then the court said and you don't have to pay for the eight hours of overtime for sleeping since it's more than twenty four hours so long as you have an express agreement with the employees for that so the truth of the matter is they had a fifteen minutes they didn't save any overtime because the court found there was no agreement for the eight hour pass that the fence they asked for and basically they got caught trying to run a scheme on the reason to change the work we didn't do that in his opinion that's what i think is critical to their own decision if you have two competitors there you know they they say well competing goods one competitor can try and get a leg up on the it will be taken under advi