yes i can thank you good morning and judge her with i can't say all right more and we are missing a fourth judge a judge really fletcher is trapped on bart at the moment and he told us to go ahead to good morning may please the court my name is john saga feet and i represent plaintiff appellants a reserve ten minutes for a bottle this case asks whether the f s a actually allows payment of two dollars and thirteen cents an hour to a waitress for scrubbing urinals and toilets and mopping floors after the restaurant closes does the f s a allow two dollars and thirteen cents an hour for waiters to chop vegetables and roll silverware for hours during the day no that would make a mockery of the tip credit and the f s a because when it happens it drives down servers wages pushes them into poverty and shoves janitors and prep cooks and dishwashers into the unemployment lines that's exactly what the  a is meant to prevent the ninth circuit should not create a circuit split by endorsing such a permissive view of the credit rule rather this court should join its sister circuits accepting the strong majority position that the twenty percent rule is appropriate under the f s a the regulations the deals opinion letters amicus briefs and field operations handbook this boils down to whether the deal's consistent and reasonable interpretation of the ambiguous statute and regulations is plainly erroneous or or inconsistent with the regulations it's not so our requires this court to defer to the deal's considered expertise and preserve a harmonious body of tip credit jurisprudence nationwide this will also fulfill congress goals in acting and updating the f s a to help the working poor the millions of waiters bartenders car wash workers airport attendants and busboys to stay above the water line of of the poverty level in the senate's words to earn a living wage so the starting point is the statute to zero three t is ambiguous and i ask a question yes your hon than one way no yes judge her it so just because something is ambiguous doesn't mean that any interpretation is valid so it's ambiguous in the sense that it's unclear how to tell when a waiter is just a waiter and when a waiter is part waiter and part maintenance man has to be some way to tell but you can't throw up your hands and say during the course of the day we're just we're just going to close our eyes and he can do as much maintenance man work as he wants as the restaurant wants but we're not going to call him a maintenance man so i think that it i have a question and how is it that time helps you answer that question that the regulation it at least in one example doesn't refer to time at all it refers to someone who is a waiter in a maintenance man and i don't understand what time has to do with that because if someone is told to go fix the boiler and if it takes five percent of his time or ninety five percent of his time it's a separate occupation and i don't understand how time heat being helps to flesh out the question of when one occupation is happening and women different occupation is graber that's a great question the twenty percent tolerance is only for the related duties so in the main and man situation the maintenance man work is unrelated to being a waiter right being a waiter is taking orders delivering food talking to the customer being a maintenance man is grabbing a screwdriver and fixing something so since it's unrelated time doesn't matter so if you do it for half an hour if you do it for four hours it's unrelated it's i think everyone i think the majority opinion accepts and and everybody accepts that's just a different job as long as you have the dual jobs regulation that's a different job the the way in which time becomes that the entire isn't that the entire point of the regulation which is called d jobs and yes a question is it seems to me the question is whether the duties are sufficiently related that they comprise the same occupation again regardless of the amount of time spent so i focus it seems to me of the regulation is entirely on what comprises a particular occupation and not how much time is spent on any particular part of that so let me answer your question by digging into the specifics of what the twenty percent tolerance means so this is a buffer this is a safe harbor that the deal well granted as as essentially a a gift or a safe harbor to the restaurants to say you can have the waitress do her job but up to twenty percent of the time so in an eight hour day that's one hundred minutes so an hour and a half of her time can be spent doing other work that's not tip generated she can go back and slice a line for somebody who wants a lime in there in their coke she can she can roll a noose set a silverware for somebody who drop their fork she can go make coffee if the if the expediter failed to make the coffee the kitchen staff isn't a up to speed she can go make some coffee she can spend three four  five minutes making coffee she can spend thirty seconds or a minute rolling silverware she can spend five minutes chopping vegetables that is a far cry from one hundred minutes during the course of the day an hour and a half the quantitative test is actually also a qualitative test because once you're spending twenty percent of your time an hour and a half two hours three hours of the day chopping vegetables or rolling silverware or filling salt shakers you have become a different kind of worker you have become kitchen staff you have you're doing the job that the expediter does you're doing the job that the inventory person does so infer if you if you did not treat it the way the regulation coffee so that i assume the alternative would be that these related jobs would not since they're not the waitresses job but there's something related to it must be part of another of another function another occupation and then they would also under that also have to be paid other than the employer wouldn't get the benefit of the related related performance it would go as another is now performing that's right judge reinhart so if the restaurant requires the waitress to go away from the customer for two hours at a time to fill salt shakers how many salt shakers can she fill in two hours how many bottles occupation that is visually related to the waitresses work that you can give the employer the benefit them let me pose it this way the crux of the analysis is customer interaction so a tip job is a tipped because the customer sees and rewards good service that's in the legislative history that's in the regulations that's in common sense that's what are the two jobs a kitchen staff so i was so there are saying that everything else he has tipped occupation falls under the dual the second job is kitchen staff job is a kitchen staff job is there your position your honor i actually don't remember specifically about mr marsh but there is a mix of of work and there is a utility player position so all of those tasks you say there is there's a job called kitchen staff that would be hired you would ever ties for kitchen staff person who would have all these others are and so there is such a position task it's a separate job you sort of put them together in some way or how how do you figure that out so with a starting point is there is a putative tip job that the employer wants to get the benefit of to be able to pay two dollars an hour right so so we wondering what they were in this case but there really isn't one right so i think you're pointing to an ambiguity in the regulation which is that the regulation is a luster divots not definitional and it speaks in the in the phrase dual jobs it talks about a waiter and a maintenance man goes on to say when you have a bunch of different is that falls within the waitress job or there falls within the counter and so it would seem inconsistent with the f l us congress is intent on the deal as intent to say it's dual jobs regulation he's a waiter he's a maintenance man let's pay more appropriately for both jobs but if he's also a janitor all bets are off they can pay him two dollars an hour that i don't think that would make sense if that's where you're headed so if it's a triple job and there are two on tape jobs if the restaurant is loading more until on them and pulling them further away from the customer and further away from the opportunity to earn tips and driving their wages down further and pushing them further into poverty i don't think that that would be consistent with what the f s a instructed in one hundred thirty anymore is classically an example of a dual job a second job that's on tips where they cannot get the benefit of that customer interaction and push their wages up from two dollars to three dollars to four dollars hopefully up above the ten dollar an hour poverty level for a family of four in that in two thousand and eighteen how is this going to work how does your present i know i know this many how does your rural were practical matter in the work force are you suggesting that the people who are waitresses are waiters need to be keeping track of their time or how how does your proposed rule work love the starting point is that the restaurant controls the workplace right the restaurant doesn't need to fear that waitresses are going to secretly absconds to a separate room and go role so where hiding away from the customer the waitress took the job because she wants to serve customers and with seventy one percent of her earnings dependent on the customer she certainly wants to be there in front of the customer giving good service so the starting point is that the restaurant has to structure has the opportunity to and muscle structure the job so that it is consistent with tip work so we have employers that when they want to hand a broom or a mop to the waitress when she comes in they have her clock in at the minimum wage the restaurant is closed she's mopping the floor they can have or do whatever they want then when they get their first customer they just go over to the to the register and they use their fingerprint or they type in their idea they swipe their card with today's technology that may take one second that may take four seconds she's shifted over to the tip credit rate so she starts her day at seven dollars twenty five cents she shifts over to two thirteen as soon as that first customer comes and then from that point on she's almost definitely within the twenty percent tolerance because a restaurant that's faithfully trying to follow the law is not going to send her away to another room and not going to send her back to the kitchen for an hour or two at a time they're going to let her do her job and the restaurant needs to also hire the appropriate st we have litigation against companies that just decided you know what we can pay the waitress two dollars an hour to be a janitor so let's just fire all the janitors we don't need any janitors we have companies that have done that we have companies that don't have dishwashers because why hire a dishwasher at seven twenty five when you can have the waitress do it for two dollars and that's exactly what the f s a is meant to prevent now if i take it you think that the fast decision was correctly decided yes you are at the time the fast decision was decided we didn't have smith kline right yes your  interpretation given by the department is not inconsistent or is or is consistent maybe our deference is appropriate but smith kline talked about an instance where that might not be the case if the agency hasn't given proper notice there that might be a surprise ok sorry i guess for not understanding earlier so in smith kline the deal had flip flopped during the litigation they gave a different rationale during the course of the litigation they were all over the place so this is easily distinguishable from smith kline where we have considered engagement with the community in the opinion letters from the seventy's to the eighty's to the two thousand this is the pinion letters though that you're talking about i think were in existence at that as of the time of the the fast court s that you have cited but i can't find in the record anywhere where what i am referring to as this disclaimer has come off the handbook even since the fast decision is that in our record i don't believe so i want to try i think there a couple interesting parts of your question so let me start with the handbook the handbook disclaimer is not as much of a disclaimer as some litigants have made of it so let's see what the handbook says it says it's an operations manual provides investigators and staff interpretations and in the sentence before the sentence that the defendants like to quote it says the field operations handbook reflects policies established through changes in legislation regulations significant court decisions and the decisions and opinions of the administrator it is not used as a device for establishing interpretive policy so what it is it's distillation of actual policy and that's what they've done they've struggled with all these opinion letters that were dealing with spot situations just like court cases do and it draws the lines and it draws the boundaries and it says ok in light of all this and in light of the regulation in light of the instructions from congress we're going to distill this into a rule and so they've done that they have not established policy but they are declaring policy and as the senator before the quote unquote disclaimer says it reflects policies established so it's reflecting the policies are these other so i think i've only answered part of your question that i don't want to interrupt you ok so so then i guess the rest of the question is are we assuming that our still exist right now yes ok i am ok ok yesterday it seemed to it seemed to continue to exist my question really goes to i'm not so sure it's enough for the regulation to be big us and for the interpretation but by the department to be consistent what about smith kline should we be concerned that folks who are know subject to this interpretation have are going to be unfairly surprised if they have adequate notice that's that's what i'm getting at i think we have the opposite situation that we had in smith kline and smith kline there was unfair surprise because the deal well surprised a whole industry risking massive new liability having had no enforcement actions during decades of what the court called a very lengthy period of conspicuous in action it first announced its position in amicus briefs in that case in that case and the reasoning changed during the litigation here we have fifty years of the deal well taking the one nine hundred sixty six amendment one nine hundred sixty seven to all jobs regulation nine hundred seventy nine eighty three eighty five two thousand i forget the there's not opinion about it so it's been consistent well in terms of public notice isn't it when you say it's been consistent didn't they first adopt this in the in the amakosa brief in fast no they they established it in the field operations hammock in hundred eight so far i don't think they told anybody but when was that first put on line i apologize your honor i do not know i think the internet was not in quite the shape it is today back then but it was a handbook for investigators to take to restaurants and say are you breaking the law right and i'm not trying to belabor the point it's just that i don't think that gets you there if the question is unfair surprise and a handbook that's for internal use i just really question whether that's giving for notice in fast i think they they did and they  are pinion letters that i think predate fast yes up a strong argument that that is the gist of my question and maybe you've answered it but i've not sure if i have disclaimers not taken off the manual even today i thousand and i think eight that that the department has given notice that that is its policy even though the handbooks not used for establishing the policy right and it's reflecting what the deal had been doing for those decades so the rest of this is the opposite situation from smith kline smith kline was creative lawyers saying gosh pharma sales reps of have been doing this job for a long time maybe they're exempt maybe they're not exempt let's try it this is what we have here is the restaurants are making a creative argument in recent years after the opinion letters being in existence for decades after the handbook being in existence for thirty years and now they're saying well you know what maybe we can pay these guys two dollars an hour but the practice has existed and restaurants and workers are abiding by distillation of these different points of the opinion letters and that's really meaningful the opinion letters give us this concept of a clear dividing line between duties not between time between duties and and it's told us you know before opening that's  danger area after closing that can be a danger area and having them do work that's that's focused on one employee as opposed to generally assigned that's a danger area and it's talked in percentages thirty percent forty percent is a red flag so the field operations handbook is by no means coming out of nowhere like like smith kline it's just the rational distillation of what has already been happening and it's consistent with the dual job regulation because i think the quantitative qualit e significance of the twenty percent rule is really important once i as a restaurant owner force my waitress to stay away from the customers and go to a room and and fill one hundred salt shakers and fill one hundred catch up bottles for two hours during the course of the day more than twenty percent she's not seeing the customer she is in a dual job she has transformed into a different job she is an expert either or she is a kitchen staff or she is something but she is not a waitress we do not look at that person who is in another room from the customers and call her a waitress so i'll say the rest of my time thank you thank you counsel paul de camp from epstein becker and green for all of the employers in these nine cases i think it's important to note that the need this long in the rabbit hole which in our issue with the department of labor there is looking a very important separation of powers concern it's tempting to say the department of labor does good things they enforce statutes that help the little guy and so we don't want courts getting too much into the field of micromanaging what happens in  workplaces so it's tempting to defer to the department of labor that's fine but if the court approves the actions of the department of labor here in going as far afield as they did of the statute that congress enacted i guarantee that that grant of power to the executive branch will be the first case the parties cite the next time there's a challenge an executive branch overreach the what the department of labor did here is an extraordinary power grab and we'll talk about why that is but can't i have i have a sort of prefatory question which is as i understand it you are not challenging the lividity of the regulation  underlying regulation only the interpretation of it is that correct and that's not quite correct your honor we are challenging the regulation itself that it's not entitled to sever and deference it's not a strictly speaking a procedural challenge a challenge to the issuance of the regulation but it is a challenge to the level of deference and that's based among other things on a motor cars there was no explanation given by the department as to why issued its regulation and i'll talk a bit about why exactly the regulation itself is inconsistent with the statute inconsistent with congressional intent as expressed in the service i want to i want to understand your position if you get the regulation gets no deference or not inconsistent with the statute we would give it no difference i'm not saying that the court should give the regulation deference what i'm saying is that the framework to apply is skidmore using the analysis of the reasoning power to persuade the consistency or not with the statu position at the department doesn't have the ability to say we're only part of the job is to producing the tips exceptional only applies to that part of the job yes your honor and the other so you you think that as long as any portion of employees job is tips producing then the employer is excused from paying the minimum wage for the entirety of that employee's employment no your honor and what's important here is that therefore the part well if clarify so your position is essentially that the employee is getting a minimum wage it's just that it's in order to calculate the minimum wage it's including the tips necessary that they're getting so why isn't that in conflict with the statute provision that says that the tips are the employee's own property the statute does not say that a says something like that i'm paraphrasing but that the  discretionary and they are given to the employee for good service and it's not something it's given to the employer to be used to count in its favor at to the minimum wage you are think would be helpful to talk about what so you can answer my question because to me it seems pretty stark is the big bottom line difference is that your employers want to include the a man to be able to tips to say that they're in compliance with the minimum wage law right yes or ok so why isn't that inconsistent with the statute the statute permits exactly that section three of the f l essay sets up a number of definitions for wages it's not just cash wages that it's not just for tipped employment section three i'm says that other things that are not cash wages from the employer can satisfy the minimum wage for example lists meals lodging other is that at least in instances where employees are earning more than at the time it was twenty dollars a month now it's thirty dollars a month and tips the employer may treat as wages to find under the f l s say the tips that the employee receives up to the amount of the minimum wage so subject to the tip credit they have to provide a cash wage of at least two thirds or tipped work it doesn't say for tip work it says tipped employee one who customarily regularly receives at least now thirty dollars per month in tips what the senate said about the second i connect right here and maybe you're getting ready to answer this part of the question but this just seems to me precisely the kind of hole left in a in a statutory scheme that an agency typically fills in by regulation and you seem to think that this was even at the mintz where the employee performs a variety of different jobs the employees status as one who quote customarily and regularly receives tips close quote will be determined on the basis of the employee's activities over the entire work week what congress  is that we're not looking at it these ten minutes are tipped in these twenty minutes or not they said you look at the work week as a whole it's either tipped employment or it isn't that's what congress said that's in the senate report so what deal well can be congress say that in the statute no your honor if i if i can channel justice scalia for a moment why should we pay any attention to the senate report if we're not going to pay attention to what congress said then well i mean we have we have several supreme court opinions in which the majority says or at least several supreme court justices say these reports are not reliable we should look at the statutory language rather than the report i take it you're you disagree with that method of statutory interpretation well your honor whether i agree or not isn't germane what is germane is that the supreme court has already takes the view that legislative history is a relevant consideration not the only consideration but a relevant one so what's the last opinion in which the majority said that put aside the legislative history for a moment what's your best argument from the statutory language the language of the statute a section three am talking about defining what a tipped employee is an employee who is in an occupation in which he customarily and regularly receives more than thirty dollars per month in tips that's the language there is no focus in the statute on the duties the question is did the employee in this employment in this occupation receive enough in tips that it is within section three of the f l s a to allow the employer to count those tips because the employees receive some things of that when i go can i go back to the question i asked you before because i'm not sure we focused on the answer if somebody gets sufficient tips and ten percent of their time because they're working at a high end restaurant to fill in the minimum wage for the rest of the month then they can be assigned to a non waitressing duties or non tip duties for ninety percent of their employment at two when we look at what the tasks are that the employee is performing if those tasks are outside the scope of what would reasonably be considered the waitress occupation or the the bartender occupation go mow the lawn go  install the satellite dish on the roof things that are not within the scope of the cluster of duties that one associates with the job then we would say you now you're looking at time that would count against and that might be enough to make that work week in this case it's ninety percent of the time to employment because the predominant work is outside that occupation but when we're talking about activity and we need to find out how based on what congress has said on the work because the whole the primary duty type analysis is  do with the determine whether or not the definition of customarily and regularly has been how would you analyze those wages i think it's easy enough to look at the tips th employee receives the cash wage that the employer is providing and over the course of an extended period recognizing there might be a flukey week here and there where the employee doesn't receive much in temps determining whether this employee is regularly receiving thirty dollars a month again looking at what the tasks are if the restaurant has the tipped employees spending ten percent of the time in a customer service type role and ninety percent in the kitchen cooking for that new customer interaction i think at that point consistent with what the senate has said that that would be a week that is predominately not tipped employment and therefore not subject to the tip credit but again i think that the court is able to say difficult with this is that we have a statute we have regulation away the handbook correct crime now you want us to add a fourth lare that somehow the employer's going to go back to legislative history to figure this out and that just doesn't seem to make any practical sense here i mean we have skidmore if you look at skidmore we understand what your position is but what's missing in all this is the practical application for the reasons of the question just asked for you have this person you c can be a tip employee and get thirty dollars the first day particularly in at the price they charge in san francisco and then you could go off and basically be in back room for the rest of the time under your analysis how is the restaurant to know when and the real question is why isn't giving some baseline for this a reasonable interpretation how to execute th regulation there are a couple of responses to that your honor the first is we're not saying that there should be a fourth layer of difficulty what we're saying is that the legislative history informs the meaning of the statute which then informs the analysis of whether what the department has done at a regulatory or sub the tory level is worthy of deference the second piece of it though is that when we look at what congress has said in the types of jobs that congress has expressly told us are to employment they are listed in the same senate report that i mentioned before it cited to page twenty four the waiters bellhops waitresses counterman busboys service bartenders those are jobs that if you apply this twenty percent standard it will incorrectly sort at least two if not three of those positions busboys for example and service bartenders almost never do work that would be considered tip generating so we have a real problem because this twenty percent standard does not correctly identify positions that congress has said are tipped employment if we had a situation of a waitress or waiter who spends twenty percent of his or her time directly serving customers and eighty percent of his or her time bussing tables under the part department's analysis t percent standard that would not be tipped employment that eighty percent of the time would count against because it's not generating tips what the department has done here and i'm not debating motives it's just we've gotten here through a path the department has distorted the original focus which is the occupation and whether the duties are related to the occupation instead is made it about whether the duties are related to tips the department doesn't have the authority to do that department can police the notion of is this an occupation are these tasks well within the scope of what would reasonably be expected for an occupation we make a lot in our brief about the owner at database for example objective metrics and that's page twenty nine to thirty six of the isn't looking at every kind of activity that a waiter or waitress or a bargain you might before the thing about the regulation where everybody or anybody that works in a restaurant the thing about the regulation your honor is that as far as it goes it's not a problem because what the regulation does that says we're going to talk about two ends of the spectrum a dual jobs scenario where an employer has to non overlapping jobs that's the maintenance man in the waiter in the hotel restaurant and then over here we have a couple of examples of individuals who have a broad cluster of job of activities but within a single job we have the waitress who spends part of our time doing certain other activities etc and we have the counter men who may prepare his own short order cook some sort orders and that sort of thing or may take a turn on the grill so we have dual jobs here that's an issue we have not dual jobs over here and that's fine but within the department it is it said everything that is not exactly the scenario on this end which is the single job everything up to that and all across the spectrum to the other end creates a dual job scenario that's not a reasonable give me that i read the opinion letters that you read to him the ha your letters we can agree or disagree as to what the results reached in particular opinion matters but i think that what we see at least in the in the genesis of the seventy nine opinion letter was simply  department said well we think that preparing salads is the work of chefs that's all they said they don't cite any authority for it there's no indication that in one hundred seventy nine the department had any experience identifying particular tasks in particular employment and that's directly contrary to the objective data base the onet database that the department uses and sponsors and pays for with a grant that says that preparing salads and making food is at least one of the tasks that a server can perform so that hundred seventy nine letter we can it did a lot of things but really what it did was it and pulled from thin air the assertion the unsupported unreasonable arbitrary assertion that making salads is the work of chefs and not the work of waiters and waitresses that's where it was a bridge too far because it was not supported by any research by any analysis and now if we had a job i think one of the things about the seventy nine letter is that they were looking at two hour blocks of time before the restaurant opened and the department had a concern i don't think they reached the right result in the seventy nine letter but they were talking about a concern of a an identifiable large block of time when the employee was not doing anything that would generate tips but instead was preparing themselves or preparing the salad bar for for use in the restaurant and i think it's important come back to the facts and our cases here we have nine cases where there's not a single one of these complaints where we have allegations of people spending hours and hours on end rolling silverware hours and hours on end making food as was conceded during the oral argument before the panel by the plaintiffs that what we have here is tasks interspersed throughout the day it's five minutes here it's two minutes there that's very different from somebody spending half a shift a whole shift doing some other task or taking a particular one of the tasks of the twenty four or so that we might say are the server tasks but only doing ones that don't include customer interaction for second  being a waitress in a janitor department could say your janitor time cannot be aggregated with your tips in order to go to keep you at the two dollars thirteen hundred hour no your honor what the department could do is consistent with the report from the one nine hundred seventy four amendments they could say we will look at the work week as a whole and if you're predominant activity in a work week is the janitor activity then the to credit does not apply at all for that week apartment to do that so how would you i want to understand your  debt is that is long as more than fifty point zero zero percent of the time of the employee is spent on tipped occupations then you can if you can apply the minimum  been in the handbook fifty percent you would have a problem with that under your theory right that's not correct your honor if the guidance in the handbook had been fifty percent of the time spent on tasks within the occupation then i would not have a problem with the handbook instead what it said is you have to spend in effect eighty percent or more of your time doing identifiable tasks in pursuit of tips that's the bridge too far that's what deal well can't do the statute doesn't support that the legislative history doesn't support that in the regulation doesn't support  interpret the statutory term tipped employee how do you define a tip came ploy because that is certainly an interpretive task the term tip simply is defined in the statute and there is interpretation that goes into defining it but the term is not ambiguous it says the language is very clear and we've quoted it before but it's the employee who's in an occupation who receives thirty dollars a month or more in tips customarily and regularly that's all that there is and it's important to think about the policy behind section three m of the f s a to the fifth where you get to the fifty percent that the fifty percent comes from the senate report to the one nine hundred seventy four amendments that's where the senate said and this is a senate report ninety three days six ninety it said this one which i quoted before but that you would determine the status as a tipped employee on the basis of the employee's activities over the entire work week the steps of the senate specifically addressing this point you would rewrite the statute in other words i mean to as i listened that it's a question of almost putting a carrot in the statute after tipped employee in inserting your fifty percent because you're in effect rewriting the statute that you're not looking to interpretation of some regulation you want or not not to rewrite the statute but certainly there is lots and lots of case law from the supreme court and other cases that have said and other courts that have said that the legislative history is an important measure of what a statute means fundamentally that this is a court of law that is tasked with identifying what is the law that is going to apply in these cases as part of that analysis and it's part of figuring out whether d l l was within the zone of delegated authority the congress gave but here we have to take a look at what does the statute mean and i could i ask you a preliminary question then do you believe the statute as it defines tipped employee is ambiguous no your honor well if it's not ambiguous in terms of what's a tip employee why would we get we going to the legislative history to determine what it means the statute i don't think that the court needs to courts frequently do but i mean i just heard a whole exiguus this about the fifty percent so i'm just having some trouble understanding your argument and then fitting it into what has been a traditional means of step to two i interpreted to be very clear our position is that the statute is clear the statute says if you make thirty dollars a month in your job in tips you're fine and the winter reading gauged in an occupation and the word occupation isn't defined in the statute that is correct the word occupation is not defined in the statute i think that that's a word that when we look at the statutory context as a whole is not intended to do a lot of work occupation is a job we use in the unless there's a reason to use a different term use the plain ordinary meaning associated with the term and so to come back to the point when we have an employee receiving the requisite amount of tips in their job per month our position is that sufficient that employee is a tipped employer the f l s a as a fallback position if the court concludes the statute is ambiguous in that regard then the legislative history is quite germane to show what the senate intended to what congress intended in passing this term it's important think about the policies behind the minimum wage much was made in the argument about well if we let employers do this work at two thirteen an hour then other employees like janitors won't get hired  different hours and it was suggested that that the f l s is designed prevent that it's not the there is a provision in the f l a say that is intended to affect the assignment of work as among different employees but that's the overtime premium that is designed to relieve unemployment by among other things encouraging employers to spread work around among multiple employees instead of having it be in a few employees doing long hours of work the minimum wage is not about spreading work and it's important to understand there is no evasion here because as long as the employee receives cash wages and tips sufficient to equal minimum wage the employees rights under the f l as they have been fully protected that employee is just as protected as if that employee had gotten seven twenty five an hour or  r the relevant minimum wage will be at the time that employee as received equal protection there what the plaintiff position here would do is entitle to employees to greater protection minimum wage plus and that's not something that the f l s requires some states might require the congress could require if they wanted to but that's not what the statute does just like the statute recognizes in its definitional section three am that wages can include other things aside from simply cash payments from the employer  lodging that sort of thing other facilities they also recognize that at least for employees who on a regular basis not sporadically but on a regular basis are receiving tips beyond of them in the most amount per month it is appropriate for the employer to treat ppleby's was decided wrongly and i think that is it is more clear now than was clear at the time christopher against smith kline it was not in the books the department has vacillated in this case far more than really different for reasons i don't want to take a lot of your time it was really different for reasons that opposing counsel isn't right that the interpretation of that was a was announced in the case in response to the case and so forth that i think was pretty clear about that there were reliance interests and other interests that were in play in that case but the court was also clear that when agencies vacillate that will cost them our deference there may still be other levels of deference like skidmore that can be available when we do the analysis there but i don't agree with opposing counsel argument that this has been the practice and that the agency has abided by this handbook rule what i'm calling him but will for decades not at all your honor i think it's important to note that the agency had the position that we're talking about first articulated in one nine hundred eighty eight in the hand thousand i literally expressly pulled back and rejected this twenty percent standard six weeks later they pulled that back then and today they withdrew a letter yes right at but it was a was an officially issued letter six we later after the administration changed they pulled case they said that maintenance work now is unrelated you can't take it to credit for any time spent on maintenance work on cleaning specifically then they didn't announce that publicly to your honest question plaintiffs counsel they didn't announce it publicly something that is clearly consistent with the earlier and you letters and where anybody with common sense would draw the line but with all due respect you're online no because the owner database for example lists cleaning bathrooms checking cleaning bathrooms as part of the dozen tasks so that canceled just because employers require their servers to do that does that necessarily mean that that's part of the waiters job coupled with the fact is this is a circular to coupled with the fact that  the database that the employment and training administration another agency the department of labor uses the treats as authoritative for purposes of figuring out how do we get people trained for and into jobs they treat that as one of the tasks and no i don't think i'd want my way to clean the bathroom i don't even want mind checking to see that the bathroom has been cleaned but doesn't this not just reflect the database that says people have a lot of dual tasks a didn't apply to them before congress was very clear when they said that they wanted to permit the continuance of existing practices with respect to tips that senate report eighty nine fourteen eighty seven the expressly did not want to up and practices they did not want to remake the restaurant industry all they wanted to do was to ensure that employers provided at least a minimum cash wage equal to that half of the then current minimum wage that's all that congress was doing they were trying to micromanage to restate these roles so when we're talking about dual jobs what we're talking about is there are lots of tasks in the restaurant industry where the same task might belong to multiple positions that's not dual jobs that is venn diagrams that have some overlap that's very different from a dual job scenario and i think good country excuse me could the department in effect throw up its hands at some point and say look we've done all these surveys and there's a related jobs news unrelated jobs and rather than spend our time in the weeds on this we're going to come up with a twenty percent rule well why isn't that a reasonable interpretation of the statute because again the twenty percent rule would incorrectly sort busboys counter reflected tasks within the occupation on a work week by work week basis in other words we're going to what i'm saying what what if what the department said we've been doing the surveys in the tasks keep expanding interacting and we can't tell what's related non related so we're just going to adopt a percentage rule i take it your position is that the department did that fifty percent to be ok but twenty percent would not it's a question of percentage of what if we're talking about percentage of time spent on activities that are within i'm talking about the strategy of the work i'm talking about percentage of the work week and says where we're at this point on able because employers assign so many tasks to micromanage what they are so we're going to adopt a percentage rule if you spent fifty percent of your time on to producing work that's fine if you don't it's not fine you would be ok with that regulation absolutely not your honor because what you're talking about is the difference between focusing on time spent pursuing tips versus time spent on tasks associated with the occupation it would be legitimate for the department to say we're going to look at whether the employees are spending their time on activities that are within the scope of the occupation that's legitimate wh not legitimate is using pursuit of tips and those activities as a proxy for actually analyzing the occupation that's where the department has gone too far your time has expired and that's are further questions thank you coun mean continuing the practices with respect to the tip credit because a to credit didn't exist it just the rest of that paragraph if you just dig into that section of the senate report just talks about not job duties or what constitutes a typical patient it talks about the mechanics of how tips are collected and pooled so it's not talking about job duties this idea that focusing on tips is a bridge too far is quite remarkable because we're talking about the tip credit it's called the tip credits not the janitor credit it's not the dishwasher credit it's the tip credit and the whole centerpiece of it is that you get to bump your earnings up from two dollars and thirteen cents hopefully t certainly the minimum wage hopefully to a living wage which is the exact the entire point of the f s a and i think that this does use the term employee which does use the language and the employee aged in an tipped employee means employee engaged in an occupation in which he customarily and regularly receives more than thirty dollars a month and tips so my colleague would read that as a tip employee is just someone who gets thirty dollars a month and tips whatever we think of congress we don't think that it uses language like in gauge an occupation for absolutely no reason or customarily and regularly for no reason so it's focusing on what are you doing what's what is your occupation what is your role what is your job what are you doing with your time that customarily and regularly gets you to yes so it's ambiguous we have you have to interpret it the congress also instructed the dio well to interpret it in the one hundred sixty six report at page eight forty four it must should promulgated regulations and rules and orders to implement our wishes so it's got to do something beyond fifty sixty and it's done that in the opinion letters it's done that in field operations handbook and so it's interpret in this ambiguous term of occupation and it's going back to the title in two or three am it's a tip credit what does that mean it's a tip employee what does that mean well it's too easy for a restaurant to circumvent congressional intent by handing them a broom and saying stay away from the customer for yes i think that the so you can you can apply skidmore deference to both the regulation and the interpretive work that's done that's been done by the do also to answer your question i think under skidmore deference the dual jobs regulation is a reasonable implementation of the tipped employee definition in the f s a what does it mean to be engaged in an occupation that customarily yields tips well it wouldn't make sense for a hybrid person who's doing maintenance work or janitorial work or dishwashing work and waiter work to be deemed a tipped employee for all time the fifty percent rule is a way of doing it but it allows a huge amount of survey of the purpose to ensure a fair day's pay for a day or fair day's work to prevent chiseling of wages and to provide dignity and security for american workers as the court said in or with half of the waiters and waitresses on government support i think that's really important to keep in mind  so under skidmore the fifty six is completely reasonable and and valid for this court to take into account if the court were to follow the defense counsel's proposal of taking a sledgehammer to the d l and just wiping away the the field operations handbook wiping away the amicus work and the and the letters then we're just we still have to create a rule and we're starting with the concept of the tip credit what is tip work and and then the regulation to do a job regulation is a reasonable interpretation of that and from there you have to have some kind of reasonable balance around what a restaurant can do the restaurant arguably owes it shareholders a duty of insuring that it's paying its workers as little as possible and this court has the job just like the eighth circuit did and just as the fifth sixth seventh and tenth circuits have been grappling with these issues and if you read those  opinions from all those circuits we have not a single judge who has disavowed the twenty percent rule we have not a single judge who has gone into this outlier position that our district court judge as i think our district judge is responsible for about a third of the decisions in this nation went issue with your suggestion that the restaurant owes its either stockholders or owners to pay the least amount possible i mean i think what they are is to abide by the law and that's what this debate is about so i think that's a bit of an mistake that i made at the earlier argument that my brother referred to i answered a question from judge accoutred to at the end of the argument about whether the duties were intermingled and i think i had a an imperfect memory of the record and i think i may have misunderstood the notion of intermingling so i did certainly did not intend to concede that the job duties were always intermingled so because we have both  intermingling and we have the work that's done before and after the restaurant is open so for example silvia cohen is one of the plaintiffs and she has allegations that she did work before opening for about two hours every pay period she has about eleven hours of allegations of after shift working mopping the floors for two hour hours cleaning the soft drink machine deconstructing it cleaning the parts soaking the nozzles using bleach that kind of thing for three hours deep cleaning the booth cleaning the mini fridge for two hours scrubbing the walls for three hours so those are all post shift she does also assert that she did work during the shift cleaning the ceilings cleaning the fans with chemical soaps loading unloading the dishwasher doing stock work for four hours that kind of thing so there is intermingling and there is also some separate a separate billet the key is that the restaurant determines the structure of the workplace they determine who to hire they determine what jobs the people are going to what would you have us do in this case what assuming that you prevailed should we tell the district court to do i think that the court should follow our but also as a backup follow skidmore and i'm tasking what what are we telling the district court to do is zooming that you you prevail what should we tell the district court to do induce case tell the district court to follow the twenty percent rule and allow the plaintiffs to move forward with their allegations that you know you could doubt the case for failure state klein excuse me i'm sorry he dismissed the case for failure stated claim yes you're correct it goes back and then we move to the next stage file right answer got the case moving right we just start we haven't started yet