labor law overtime claim as we conceded in in the briefs and that district court found below the plaintiff here was not entitled to overtime claim based on the fairly w act because he's an exempt employee under the motor carrier exemption however the new york state labor law provides a broader protection for its workers where in a very specific instance where workers regular rate of pay is less than one of the half times the state's minimum wage then that worker even if he is subject to an exemption is entitled to overtime pay at a rate of one dollar and a half times the state's minimum wage here for all intents at all times relevant mr hayward's regular rate of pay in and fourteen was eleven dollars an hour during that time period geared states minimum wage was eight dollars an hour and the calculus is very simple if his regular rate of pay was less than one dollar of a half times the basic minimum wage and here because the minimum wage was eight dollars when they had times would be twelve dollars but his regular rate of pay was eleven dollars is therefore entitled to overtime pay at a rate of twelve dollars an hour for all hours that he worked over forty hours during work during a work week this is promulgated which is overtime at a regular hourly rate of one and a half times that regular the hourly rate with certain exceptions and various exceptions of which the pla is subject to including the motor carrier exemption order that wage order then expressly provides that an employer shall pay employees subject to those exemptions including the mc overtime i don't rate of one and a half times the basic minimum hourly rate now this provision as i said before hours earning less than minimum wage tend to move a summary judgment claiming that he was subject to the motor carrier exemption and the district court rightfully dismissed the f l s they overtime claim because of that motor carrier exemption however the court then went on to say that new york's label will over time claim entitled the plaintiffs to overtime wages at one of the half times near its basic minimum wage because his regularly our rate was less than one of the half times the basic minimum rate with the same conclusion was reached by the western district in hernandez vs alpine based on virtually the same that they were entitled to overtime under this wage worker including the exemptions for home health aide workers and railway labor act workers although although the defendant  provides for payment to workers who are subject to exemptions now the wage order to doesn't say doesn't limit the exemption to just motor carrier exemption it just says that that employees were subject to the exemptions of section thirteen of the of the f l s day which includes the home health worker the railway labor and a motor carrier worker under under those cases we believe that the district court here erred in granting the defendant's motion for summary judgment and dismissing it on the grounds that the wage order itself expressively provides that workers who are subject to the exemption do not get overtime i believe the issue is is is very poignant and targeted here because the district court said that the wage order expressly exempts m c e workers from overtime but that's true only to the extent where it's that overtime is calculated that one of the half times the regular rate of pay except workers who are subject to the exemptions so that's already been covered which is why the nd sentence is is is is because the wage order explicitly adopts the exemption the that you have with centrally hold that every court in the circuit  that sentence i think the problem is is that it isn't clear is that that you kind of cannot reconcile the two things by saying that we're going to incorporate exemptions but then we're still going to give you something and while i think that it does sort of but what he does excuse me why i don't see why those are inconsistent the st one says ok the exemption applies you're not entitled to the one dollar and one dollar half times your regular rate be a reasonable reading of the statue your honor i think perhaps somewhat bleeds over into the preemption contact because of the the defect rationale behind the motor carrier d the issue that i have is that the basis for pet it was the concept that the law has allowed reality is is that the hours is a totally different thing the reason the motor care exemption existed was to put in place a system to protect the state the interest put forth by the motor carrier a what was central to that was getting rid of the concept of a forty hour work week but if you go in and you now say well you're going to get overtime for any hour over forty it remains to this forty hour work week that class of employees may not work more than thirty hours a week and to have the state say well but if they want more than forty hours a week say that i think is this your honor because the laws around preemption are saying that if the law is an obstacle to the accomplishment an execution of the objectives of the federal law that it would be than forty out pay you more that explicitly goes against the safety rationale of only limiting it to thirty hours that the federal government thought was so important for interstate motor carriers well  institutes the forty hour work week because the the employer is still bound by the federal law that says that that illuminates supporting our workweek it that i mean obviously if it was literally and can get this would be a different question but in terms of the long running preemption being whether it frustrates the purpose and in here i think that by having a sense that advantage is the working of over forty hours put that in a completely different hour context which is why that was sort of given over to the purview of the department of transportation and under the motor carrier you have to have an argument for the interpretation of these various and that them and other than preemption because prevention is  blocked out i mean surprise this panel is concerned i mean we can ask for in banc review we can we can ask the active members of the court if the have any objection to changing it but you have to start feeling assumption that we are bound by our precedent so do you have any any argument for the interpretation of the statute and inaccurate other than preemption which is at least from this pa that that for the interpretation and the application of that nd sentence somewhat ambiguous and therefore that when you look at how all the other courts have interpreted it that interesting that the hernandez decision which is one of the only two decisions that has held the way from the western district of new york is somewhat peculiar because in that case the court ruled that the motor carrier exemption didn't apply even for the purposes of the f l that they claim then nonetheless then went on to hold that under the new york lever a law do we place decision it doesn't even follow even the appellate argument in this case and so i don't i'm not even sure what the court was doing in hernandez our position i'd be that my time is ending it is quite simply that the the exemptions were incorporated into the statue the only logic that gives any effect to the only reading the gives any effect of the motor carrier them sion is is how the vast majority of the courts have held in the circuit  my adversaries comment about the number of district court cases that have gone the other way so to speak for me in my reply brief starting at page three and four  i list those cases and i believe there are five or six of them where i actually went into the record for those cases and distinguished them on a very specific point which was that in each of those cases fox kennedy dominated williams and remember the plaintiffs in each of those cases all turned a regular hourly rate of pay that was higher than the state minimum wage at the time those decisions were rendered so they wouldn't have to all of a fight with this overtime pay at a minimum one dollar of the half times of minimum wage or that nd se order anyway so under no circumstances could this to this a court of passed on the issue of whether those point goods were entitled to overtime at one of the have times the basic minimum wage like i said from the very beginning i'm actually not here and this wouldn't be a case if none of the plaintiff here earn the a regularly our rate of pay that was greater than one of the had climbs the state's minimum wage because once that happens is mr mr hayward errand fourteen dollars an hour as his regular rate and one of the half times is only twelve then he's not entitled to this overtime pay because he's already been overcompensated as far as new york state's legislature is concerned because he has already earned more than one and a half times the basic minimum wage so there's no need to compensate him for overtime quote unquote so like i said if  that anybody who is entitled to overtime in your view under new york law would be working more hours than is permitted by the motor carr no because the motor carrier act really just says that we're not that that we're not going to set a minimum or maximum number of work hours so what happens here is that if you do indeed go over forty hours the state says the state is merely saying that if you're going over more than forty and you learn less than one of the half times the minimum wage then will compensate you for that extra number of hours here just because the state is saying that it that you're entitled to this modified overtime i don't believe that that would create a situation that would lead workers or that would lea