as i like to start this morning by discussing which is i think the first issue addressed in the previous which is the extraterritoriality issue and i think the rule is that the court looks at the actual and so can i start with a question about that absolutely looking at section one each of wage order nine and california law it seems that there are certain things that don't apply when you have a collective bargaining agreement that complies with the are away and then other parts of that law still do apply but it seems like one of the things that doesn't apply are wage statement rules under seven section seven so i'm not sure why state law even says that it applies to this well i think if you're looking at for example it's a collective bargaining agreement somehow trumps or preamps labor code section two to six that wouldn't happen here labor section two to six it's an independent state right that exists outside of the collective bargaining agreement and i don't know i'm not talking about i'm not talking about the r l a preemption that was briefed in this case some time an issue that wasn't briefed in this case which is the california wage order that interprets the california labor court code and my understanding is that pretty explicitly says that if you have a collective bargaining agreement under the are a way that as a matter of california law not as a matter of federal preemption that wage statement rules under section seven b which are covered by thought of infection b don't don't apply i believe in the wage orders there are certain california labor code sections that will not apply potentially overtime rules and depends on how much you're getting paid for overtime to reach a certain threshold for sure but i don't recall that the wage orders records and it's that it quote shall not be deemed to cover the employee who have entered into a collective bargaining agreement  certain requirements that employers have to keep records a certain kind of records they have to keep them for a certain amount of time three years or more and they also have to make them available upon request to the employee i don't think that section that your ira just read covers the situation we have here where labor code section two to six a says here's the information that employer must give to a california employee who's getting paid in california who lives in california you know the nine different subsections i think that's outside of the wa or portion just you just quoted there you know i think i think it's a different issue i think you're talking in goldthorpe about this in the gulf war i'm trying to remember the gold for no that's a recent case i think it just came down on behalf of issue it sounds like it's an issue that maybe you haven't studied in detail i have read the way george all of them over and over and over i did not review them before today's hearing obviously but i am familiar with them and i am familiar with the record keeping requirements that are in the way george is and what i recall is that what the court is talking about here is really physical record keeping that the employer the records that the employer has to keep on site regarding how employees are page pay and that kind of thing and i think section two to six a goes outside of that section two to six a covers the records that the employer must give to the employee the records of the employee must have his or her possession to know whether they get paid i mean i think it inconsistent because you know california has a very high public policy in making sure people get paid correctly get paid on time i don't think it would make sense for a wage order to do even cerate they were code section two to six and take  judge freeland was just suggesting it's reported it twenty thirteen westlaw six two two zero three two  things i don't think that can be stretched to cover what information the employer has to give the employee when they're getting paid you know this isn't a this is an important thing in fact in the ward case is a great example and mr ward's declaration is this i got the case you contacted it out by looking at that nor by looking at the of the collective bargaining agreement and so this isn't just a technical violation we're saying or not the hourly rates aren't there the hours aren't there this is something that really impacts california workers and here it is in both my cases the flight attendants and the pilots cases they get paid a very high hourly rate is very important for them to know when they get that paycheck to know ok i'm getting you know twenty hours of my time and a half rate or my special rate as many rates in the c p a that apply here so i just couldn't imagine the wage or could be interpreted such that it would take away that right of the employee to get that information this is you know in the do we have any california case that addresses this issue that you can point to i'm wondering i mean if we think it's unclear to me if this is an issue that needs to be certified to the california supreme court it maybe i polish as i don't have the information sitting here today in front of you that i haven't looked at this  because the conduct of the labor code section two to six applies to is all the conduct that happens here in california you know my all my clients the entire class of both both classes are california residents the california employees united designates them as california employees and if you look on there is any question about that just look at their pay stubs you know there's a separate line items for paying california income tax so both classes you know they all reside in california they all pay california income taxes on those wages they all pay california a social disability insurance deductions on those wages which also includes paid family leave california so have several federal district court opinions at this point all  go in different ways completely confused about what the test should be under california law having different interpretations of all of this isn't that a sign that this is very unclear and there is no california case directly on point well i think i agree with you the district court decisions are in conflict here i think they are the ones that are saying somehow california labor code section two to six is being applied outside of the state i think in this case that that's not true for two reasons one is a factual reason it doesn't matter where the flight attendants are pilots do their work is irrelevant to the amount of money that shows up on their paycheck has no connection whatsoever all it matters is time worked out as clock in clock out times and then when you are performing that work what kind of work you do and you look in the c b a it tells you that hourly rate that's it so an employee could be working all in california where employers can start in california florida arizona or new york and come back to california the paycheck it is not going to be different depending on what states are flying or so on your argument that you just made which i think maybe slightly different than what i understood from your brief because i thought you were saying these employees all did some of their work in california but from what you just said it sounds like as long as they live in california and are getting their statement with california taxes it doesn't matter if they're in london for the entire month flying in europe they would still have this apart i think the point i was making is it doesn't matter for the amount of money on the paycheck now the fact that all that class members work in california i think it's a factor the court can consider i think in the pilot's case according to united's records the pilots fly on average per per pay period about twelve percent of their time in california and a flight attendant on attendants are a little bit higher around eighteen percent i believe so i think that's a factor the court can look at is that an essential factor i don't think so now though let's say had a little heart in california because we're such a big state but let's say someone lived on the border of california nevada commuted across worked one hundred percent of the time in nevada if they live here in california you would say that they were protected and i would say no know if they live here in california and they got paid here in california yes i think that they would be protected yes absolutely well why wouldn't they be paid in california i'm just saying it's no different seems to me than our facts here except that the person is just doing one hundred  class members they performed most of the work in colorado and arizona they're only in california for a tiny amount of time where a lesson in my case what was the issue there was not wage statements the issue there was over time well that's true that was that labor because section but the but the overall takeaway i think from your decision and from the decision from the cal supreme is was that you don't have to work primarily in california to get the benefit in the protection of california's labor laws so the california supreme court specifically said there were only deciding over time and we're not talking about the rest of the california labor kind of whether it applies so they left open the question you're trying to pursue here right that's correct and in the california case there was no labor code section two to six claim there wasn't in that case it was just an overtime case but i think the judge but the general takeaway is i think in the solving case i think oracle is arguing the same thing oracle is arguing we should have to comply with california law because these customers only only are in california a tiny amount of time it's a small percentage of their work time in california supreme court and this court so well now for the time they're in california and you're still subject to california's labor code and you know i think you've got to look at what what what activity this statute is designed to control remember the code section two to six there is it's impossible for an employee to earn wages under that statute in fact it's not even a statute that requires payment of wages it's the only thing the statute requires is what information the employer has to give to the employee and i just so i'm i'm trying to figure out what the rationale what your rationale is for california you know it will apply it's law here it's apparently there needs to be some proportion of the work that's actually performed in california and then but that just begs the question ok so how much you say it's you know fifty percent can be less than fifty percent you say absolutely less than twenty five percent you say yes ten five one i mean where what's well what's the rationale for drawing the line that's not what from the plaintiffs in this case are that's not over are granted we're know here we do have work in california and i think it's a factor the court can look at i don't think it's determined so you're really saying as long as the employee lives in california and the address that they receive their payout is in california that's all we need to know i think  two most important factors correct if they live here and they get paid you're remember they're paying california income taxes on those wages it's not like if they just have minimum contacts of how these are people that actually live here in my case they actually live here they're headquartered here united has designated as california employees and they're getting taxed california taxes so i think so you may be right that the california supreme court would agree with you but i don't know how we could possibly know that at this point how do you what are you pointing to in california law that tells us that you're definitely right discretion to that this could be a case where the court or be inclined to do that i for my of my clients in the class don't think it needs to go there i think the statute is very clear on its face what information needs to be provided and who goes to and i think again here the statu view motel six case it serves the california public interest of ensuring that when employees get their pay stub they can quickly and easily look at that pay stub and figure out if they've been paid correctly and it is indirectly related wage indirectly yeah because this is real rational the purposes so that people can figure out if they've been paid correctly and if not take action to get the right amount of pay but it's not a wage state it's not a wage statute because you can't earn wages under section two six it's not it's not a wagering statute it's strictly informational statute now the words what information does the employer need to provide to its employees in california when they get paid and it's an important it's an important statute because you know getting paid in california is california is a term and this is an important public interest that wage earners especially hourly wage earners get paid correctly and know if they're not getting paid correct so they can take action in again the example from mr ward when he got short changed  out because there was no hour there rates and no hours of work on his pay stub i think you know going back to the to the wage or issue couldn't be california law that the legislature will enact they were code section two to six and then take away those rights in a wa that so then the way george is going to trouble because only when there's a collective bargaining agreement i mean you could bargain with a collective bargaining agreement for what the wage statements will look like but as i as i recall is as well well that's interesting you're out of the in this case the wage statements or both will wage statements in what is clearly a national agreement that well the issue there is there is no conflict here and for example in this case all the plants are asking is that united airlines fill in two blanks they've from scratch or create a paste up from whole cloth we just want them to fill in the blanks that are there on the pay stub and if united complies with labor code section two to six it's automatically in compliance with the other thirty seven states that have a s because they're all the same some have more california probably has the most requirements maybe it's on par with new york if you comply with california law on this issue you're automatically in compliance with the other states and in fact in the bernstein v virgin america case  comply with california law you automatically comply with the laws of the other states so the if you look at the burden there is no burden it's you know and i don't think it's a big burden here to ast united to put in the hourly rates and the hours of work so these here honors good morning and may it please the court adamkus weenie for defendant happily united airlines i suspect you're going to ask me about the wage order but if i may just one factual item that i'd like to be perfectly clear in this case this can both of these cases video and ward were certified based on state of residence it is undisputed as a factual matter that there are people in these classes who have never worked in california at all and the reason for that is that there is a distinction in the airline industry between your state of residence which has its commonplace interpretation and your state of domicile which is a contractual concept which basically indicates where these class both of these cases are cases that are certified based on residence there are people who do not spend any time at all in california they can live in california but they may be domiciled in chicago or wherever and never touch california at all so i just valley and i commute in and my car and that's not work time it's generally understood under state law and federal law that commuting time is not work time somebody who lives in l a who lives in l a to take the example but is domiciled quote unquote in chicago would get on maybe there's someone who does this but it's not very common right it's more common for people to live in nevada and then coming to california or something like that your honor i don't know it's not in the records you guys are standing of traffic in los angeles you'd never make it to  well it may very well be that your commute on the plane is less than your commute to l a accent may very well be true i think your honor i don't have it my finger tips and it's not in the record in front of you exactly how frequent this is but it is in the record that and it's undisputed it was not challenged below it does happen why it would happen so that's sort of oh so first of all it seems like maybe that's an argument that the class reps are representative of the whole class or something i mean your opposing counsel is now arguing that doesn't matter anyway all he seems to care about is where they live and where they get their paycheck so may be on the same page if it matters where they work then we may need to get into this but then that almost doesn't seem like it's i don't know if it's presented it's i'm not sure it's presented in its appeal the way we have it right now so i think by the way i mean i think your honor is right about adequacy i oppose certification i  lost that argument below but i agree with you that it was presented out it was a problem the real issue that i think it highlights and i think the sullivan court in the u s supreme court is the california supreme court is perfectly clear on this which by the way is why it does not need to be certified to the california supreme court in my view residency is irrelevant i believe it was mentioned from the panel this morning but let's talk about why you think it doesn't need to be certified because i don't think she'll have an answer t extraterritoriality there's a presumption against it in california not even that's not even challenge by appellant in this case and it's clear also that residency is irrelevant the folk now granted in sullivan it was the reverse situation and sullivan it was people who resided somewhere else who came into the state by the way who came into the state for entire work weeks that was a stipulated is were during or weeks weeks your honor it was this it was stipulated in the record that it was entire work weeks what the court says all you need is entire days and the opinion i think that i'm not sure i agree with that i think it leaves open the possibility that maybe days would be sufficient but the facts in that case in the stipulated record that was sort of five to the california supreme court by this court was was full work weeks which is obviously not what we have what we have here so resident in example the panel mentioned earlier i believe that you know this doesn't happen in california very often because of the size of the state but it happens in the northeast all the time people will live in new jersey i did for a long time and commute into new york and no one would ever dream of arguing that the new jersey law against discrimination or that the new jersey law in wage statements would apply to a banker who never worked in new jersey and spent all of his or her time you know down on wall street or something like that and the sullivan court recognizes that they did not care and i don't think there are too many bankers who would qualify for the m fair enough but they would qualify for wage slave and protections in california so it's a fair point that your honor so the california supreme court did not care in sullivan that these folks were arizona they are out of working in california so then we have the flip and we don't know what they would say i mean it didn't matter that they didn't live in california that other california connections and so now this case presents a different way of looking at the connection so california connections with due respect your honor that starts to sound to me like bernstein and bernstein is just not supported by california law how do we know that because tidewater says that and it's a con junked of statement it talks about a number of things to two or three things and the third thing is work principally or exclusively in california these people and we know that in tide water that was enough but what we don't know is if there was less whether it also would have been enough we haven't had a california supreme court opinion or even a california court of appeal opinion as far as i can tell that address this i respect your honor i disagree i think you look at tidewater to sort of see when someone is protected by california law and you look at even earlier california supreme court cases that have talked about extraterritoriality and you know that it does not apply extra territorially unless there is a an explicit statement to that effect that it that it should which nobody is arguing exists here tidewater says that you are entitled to the protections of the california labor code when you work exclusively or principally in california and under no death possible definition of exclusive or principle do these folks work in california at most we're talking about twelve and fifteen percent of the time and i would p out sorry but can i ask you about the wage order because this whole thing has got a radical if yes if california law doesn't even cover this which i think there is a pretty good argument it doesn't and i don't understand why it's not in your brief it's not in my brief for the following reason and i am very familiar with the angelus case i was actually represented u s airways in the angeles case so i'm i'm familiar with this argument that there is this dual system of regulation in the labor code and in the wage orders and that sometimes that presents some interesting sort of questions about you know if you wave one do you wave both things like that i think it is a very good argument your honor i think it is the right argument under california law i did not raise it in this case because i was litigating this trial court and i felt on a motion for s that the extraterritoriality and d c c as well as the our elaine a t a i arguments which were not decided below all of these go to the fact that the law cannot apply in the first place i thought we had to reach any of those federal questions some of which are constitutional questions if state law doesn't even tempt to apply i mean the first question is the california law even attempt to apply we only answer the other ones if it is attempting to apply and i did just that well so i actually agree with your honor but i conceptually i view it a little differently my arguments about that i've just listed are about whether the law applies in the first place if the law does apply in the first place i e if wage order nine applies if the labor code applies then you look to see if there are exceptions or exemptions within the wage order i feel like that is with due respect sort of the second you only do that if the law applies in the first place i feel there are nurse look at what california law says which involves looking at the regulations and the law i mean this there's a statute in the centrally regulation as i understand it i just can't understand why we wouldn't first say what is california law what's california law trying to do and then we ask whether federal law allows it but without starting with what california law is trying to do then all  this federal stuff we're talking about for nothing arguably of these two extent you have jurisdictional arguments under for example the railway labor act we might have to reach them those arguments in my view and the brief gets into this a little bit again there's no question that the court had sort of initial jurisdiction there's diversity there's a money in controversy there is jurisdiction under cafe so that the court in the case is properly in front of the court then the question becomes you know do the plaintiffs claims which are under california law does california law apply at all and again in my view that's first extraterritoriality because california has said many times that its laws  apply extra territorially and then secondarily if it does it raises the issue of that of the dharma commerce clause if the court gets passed both of those and i feel both are dispositive obviously based on the decisions below then you raise the issue of well ok now we've decided that we have this claim but do we need to interpret the collective bargaining agreement to resolve it which i get i if you got that far i would think you did that you know is is a defensive application of preemption and it and the court has jurisdiction to decide the issue it's just that if it decides that it does need to interpret the c v a then it then it doesn't have jurisdiction to do that but it has jurisdiction to decide the issue is my point for i don't just need you to walk me through this argument that you didn't raise in your brief just explain how it works so the argument but let me just be clear so you are green with judge friedland this argument you didn't raise is in fact dispositive and we should just rule on that and if that's the case i need you to walk me through it sure again i feel like it's not a threshold issue which is why it wasn't raised in the  recognize that they they are co extensive that we are one does not necessarily control over the other you have to comply with both that raises an interpretive issue which to answer a question from earlier i to be candid i don't think that there is any dispositive law on it raises the issue as to sort of whether or not there's an exemption under one would apply to the to the other it is easier candidly in the context of overtime because there's a labor code section five fifteen b which stemmed from bear with me as i get in delve into the history here california had always had an eight hour daily overtime rule there was a time when the i w c removed that overtime that daily overtime rule from the wage orders sacramento was unhappy with that and so legislated that it absolutely regardless of what the wage order said there is daily overtime and then there's a provision in the labor code i believe and i hope i'm not wrong on this i think it's five fifteen be as in boy that says that when we did that we didn't mean to just say that sort of disturbed any of the other coextensive regulation we're only overruling them on this on this one point and so when it comes to overtime it is very clear that that because there's an exemption in wage order nine for overtime that that also applies to the labor code it is a little murkier to be candid with you about whether or not that would also apply to wage statements i feel like it would but again and you know because of the fact that you're some of the reasons  is mentioned this morning in terms of the coextensive regulation and the fact that it's these are collectively bargained agreements the you know they're not represented employees that are at the mercy of the employer they they are represented by two of the most powerful unions in the world quite  frankly and so i appreciate the public policy on the sort of the dual regulation reasons why that might be the right result it's very murky under california law and so again as just as a litigator in the district court we felt that a lot of these other issues were much clearer and so we raised them first and so you're here and it's clear that the wage order is trying to say that if you have a collective bargaining agreement you don't need to worry about the wage statement rules and you do stick but you're saying it's not clear that the wage order actually is  right i'm not one hundred percent sure i would be able to agree with that as a legal matter i'd like to because it helps me but i'm not i'm not really sure it's right i think it's again i think it's a system where unless there's a statement to the contrary there are two bodies of law that you have to look at and one does not necessarily trump or control the other absent some other principle and five fifteen be in the labor code is that principle so do we need to certify this question because when a supreme  court i don't think you do your honor because i think the issues that the district court decided i don't want if we disagree with you on that if you happen to disagree with me on that your honor then i am unable to point you to a controlling principle of california law on this particular issue and if we gave you an opportunity to brief it now despite having not briefed it originally it would you have more to say or if you think it's just going to be unclear no matter what we do i am not going to be able to point you to a controlling principle of california law on that i e shifting gears a little bit so you made the argument in your papers about how this would be a cog and interstate commerce could be conflicting state requirements and so forth and your have a serious he also said in his brief says well there's no real conflict what about that so there's absolutely conflict your honor and i can give a little bit of detail on that but i would also just point the panel to there was amicable brief submitted in this case by the airlines for america and pages sixteen through twenty of that of that brief go into quite a lot of detail about how if you were in compliance with one you're not necessarily in compliance with all of the others it will seem like you could though have basically like greatest common denominator approach and comply with all of them except perhaps it's delaware and wyoming is that it is so i mean given a case where the people are living in california and we have no information that these class members are flying out of delaware or wyoming why should we worry about delaware and wyoming because the mere fact that in this particular case you don't have evidence that that specific example is happening does not change the fact that this is a highly mobile workforce that has extremely limited time looking at the burden i mean so we're looking at the burden on the employer here compared to what california law does if the burden has not the actual burden for these actual employees has nothing to do with delaware or wyoming i don't understand why we're talking about delaware of wyoming as your main your best argument in this conflict point well we're talking about is a factual matter to disprove the fact that if you can just come up with a california wage they would comply everywhere else i think it's important to point out as a factual matter that's wrong but the factual matter isn't the only answer to that question the issue under the dormant commerce clause is not whether it is in some way shape or form possible to you know generate a wage statement that somehow complies with with all of these these these wage these these different requirements of different states the question is in officially neutral scenario like we are here the question is a what's the local interest and b what's the burden on interstate commerce and there are a number of california supreme court cases and he says this i think morgan says this as well that if what you're trying to do or if what the result of what you do is regulate matters that are entirely outside of your borders that's a per se violation of the dormer congress flaws so ultimately my answer to your question is is that health by passing a statement a law in california that's very restrictive and the only way to comply with it is to make sure you you people ever all of your employees everywhere have a california compliant wage statement because we can identify who these people are they did well you know they may well be saying that class is the people who live in california it's very easy to figure out who those people are the people you're paying california taxes are are the people and you're doing that so you figure that out and then you either give them california compliant which they events or you give them nationally compliant which statements and if worst of us look at the burden and that's possible to do with in the computer era i don't understand why it's so burdensome because if you allow a state to just simply say i'm going to pass the most restrictive statute in the nation and now in order to comply with my law they have to comply with this everywhere which is essentially what you're saying that is a per se violation of the dormant commerce clause because you are at that point theoretical thing if they made it like you've got a printed on gold ok then we will evaluate the burden of printing the wage the i'm told that maybe there's a problem but this is like you give the address and you give the hours it's going to comply with most places i don't understand really wide so burdensome well the other issue is and this gets a little bit into the  arly preemption issue unfortunately but these folks and i'm talking generally about pilots and flight attendants were here on both cases they are rarely paid by the hour for one thing they are in the briefing in the declarations going to this in detail and i'm running low on time but i'll try to be quick here there is basically one of three different compensation formula that will apply if you're a pilot a line holder pilot there's two separate compensation formula that would apply if you're reserve pilot and the same is true for flight attendants to different part compensation schemes depending on whether you're a line holder or reserve flight attendant only one of those in each of the context pilot and flight attendant has anything to do with ours it is a tremendous burden because of the complexity of the collective bargaining agreements the compensation provisions of these collective bargaining agreements six seven pages long single spaced and extremely extremely dense which the panel can look out for themselves judging piri actions maybe already have applying that to a situation where you have to just say you know how many hours they worked and what is the you know what is the you know what is the hourly rate i think there's an argument that we never got to in the district court because of the rulings on the issues of the district court ruled on th actually completely impossible but if it's not completely impossible it is incredibly burdensome because again it's a highly mobile workforce people are shifting around all of the time the neocons and by the way joerg of those you don't have to do it could it could be your honor again thank you very much appreciate your argument you will give you two minutes for about a year just very quickly you know i haven't read the wage or i can only imagine what it's saying there but i think what i hear from the court is  it's seen a conflict between potentially the wage order and those debts your labor code section two to six or that the wage or takes away the protections of two to six i'm just thinking going back to my civics class and government it's like if you have a statute it's an act by the legislature which is labor code section two to six that's the law of the way that was an act by elected officials the industrial welfare commission of which probably gets the wage orders it's a delegated body it's administrative agency and it's designed to issue the only way to reconcile it with the federal railway labor act which would otherwise trump the state law if that was their intent or are they would have mended labor code section two to six or put it in the original version of the statu there's nothing in the labor code section two to six and acted by the legislature that says as an exemption for the collective bargaining agreements or anything else it's very straightforward there is an exemption for government agencies and so they  exemptions in there and it's in the very end you know if you're a government agency you don't have to comply with that but there's nothing in that statute itself that says unless you're if you're you know subject to a c v a don't worry about this and if that's the way this ga that's under the our law and so the our law is about interstate transportation and it's not that crazy i think to have state law saying ok we have a general rule but of course these people are going all around the country and have these collective bargaining agreements that really govern how they're paid we didn't mean yeah i think lyrica section two to six meters is cases on that from the u s supreme court and i think in this and this court as well to do six is a is a deference i don't think so not not well i think you look at that but i think if their interpretation exceeds the bounds of the actual statute then i think they're out of bounds and i think the statute controls absolutely absolutely if that's what the court sees here then the court needs to apply there because section two to six think that's very clear i mean if the court sounds like the court is really focused on this issue it was the first issue raised maybe this is an issue we need statements because these employees given the very nature of their contracts in the way they operate are not paid by the hour door really at all so the cup it's not a question that there's a conflict between two different states other than wyoming delaware it's more that it would be a huge burden for them to even ascertain what the our equivalent is for purposes the pay stub and the paycheck our asking is that that information get pulled from that computer database and put in to the pay stub of the thing is the m p g issue there are times that the palace have a minimum pay guarantee so that they don't work hours over that they're guaranteed certain pay but in the event when they go over the minimum pay guarantee they're paid by the hour and there's not that many hours the rates in c b s they're listed specifically listed in the c v a for both flight attendants and pilots we want them to be on stub but if they don't reach that if they're just getting paid on the m p g mpg is based on hours worked how are they going to know if they qualify for the mpg unless they have the hours and the rates on that pay stub even if they didn't ok thank you counsel i think you're on his arguments today because the case is just argued will be submitted we will move to the next case on the calendar which is oman purses delta airlines