them are who worked for thirty two years as a core security officer in this very building and the building in our town trade center and the case that's before us he was part of the original group of thirteen who worked with different companies of the course of time because it's federal contracting with the u s marshal service but the case that's before us is products close of the under local law it's a diversity case and it has to do with eighty and i know all of you are familiar with law eighty dollars and one dollar thing i want to say at the outset is that this case does not have to do anything with a law that was subsequently passed in january of two thousand and seventeen which was the law for which the judge below relied on in his definition of employer which did not exist prior to that so our case is bought on brought on law eighty and i think one of the best expositions  united states provides for statutory separation pay and the issue here is in the particular context of any subsequent company which assumes the only significant asset of the prior company which is the contract with the marshal service through a federal paid in press process has nothing to do with this case if they take on any of the liabilities of the prior company we are served that in fact they do because they have obligations which come about as a result of both puerto rico law and with respect to federal law what's the term in law if they fall with a fall under the employer here and there i think you know if there's unfortunately successorship is only addressed to my part reduced from the purchase price any obligations that correspond to the original employer and so it doesn't directly apply because as george has sons and one of the few things that he did say in the opinion about the particulars of this case he said that it would not be a purchase so given that it's not a purchase all we can do from that is extrapolate what the term what the term that you're  an obligation on what the employer who  consider and continue reading and preparing for argument we come across another case law that is important and i regret that i did not put it in the prefer originally but as i sit here today and try to letter afterwards you can do both i'm sorry i cannot but i can do both thank you judge thompson in that case there was a discharge in bankruptcy and an acquisition of assets including basically the entire workforce i don't think there's any doubt in this case that the standard is a criteria for for success or employer developed under both federal and puerto rico law law in terms of puerto rico company the parent company assumed the assets and there was additional charge free of liabilities so the question that the supreme court said was dress and is we must determine whether the sale of is free of liens under federal bankruptcy proceedings precludes the application of the says successor doctrine there's a little bit of judge perry you're asking me for a particular term liability you're saying that is the liability against that you do not discharge employees i without a reasonable basis without under the employer that's not the only criterion i mean really i mean if you look at them being treated case you'll see that even though i mean the the the issue is successorship and spirit of law eighty but as i believe judge karen isn't it can you or you are stuck with the language of the statute and you you can't apply the spirit of law it got to apply the language of the statute and it is hard to see if you want to focus on the success or vision but it's hard to see how there was a transfer of a new business in the scenario here how there was an acquisition of anything there was basically a request for proposals to replace a contractor who was no longer going to be providing these protective services and as and in response to that request for thousand and fifteen my clients were employed by a car as they had been employed by each of the prior successors of my thirty two years but there was no relationship d between  entities they shared a relationship through the marshal service like the whoever was that advertise for these services but they were not it those two parties walton of the prior in terms of cancer and that's one of the reasons why article six is is difficult to embrace in this the context of this lawsuit but article six does is the spirit of the law and the totality of the circumstances that are required to be examined in terms of seeing if there was just cause for this action i mean it's just i guess you're right judgment is in some sense that  it's there has to be something that that affects and that they give some right person in this particular situation which is not specifically cow contemplated under law eighty my time is up requested for the lack of the three years experience not for the lack of the certification there are two different clauses in the contract with a united states marshal service one is a certificate the other one is a three years experience for three years experience you can request that waiver on their two circumstances whether you have you know you were prior previously employed or you know someplace maybe here in puerto rico or someplace as well there's not enough i thought the rest be assured that the m but they all they said was that we would consider it but did you try and find out whether your interpretation of the contract was right that they would have rejected the way as i did and the contract is clear yet when you told by the marshal service that they would have rejected you reverse requested yes or does the record show you know it was long and it was it was productive because you question it just the marshal service today told you they would grant the waiver would you then request it i mean i would have to i'm not speaking only have one time but yes i mean if that's the case well then is there a reason for this dispute to be resolved until you have had a chance to work out whether the marshal service would grant the waiver not anymore you know i mean they file a lawsuit on the lloyd here and i mean i was saying if you're just representing to us that the only reason this dispute is live is because you are under the impression that if you asked for a waiver it would be rejected but there's nothing in the record to show that that's clear well and is there let me let me let me bring in c n n you're saying that if you didn't ask for a years one person they went on to file a claim before they wait on our division of the department of labor and we just by the way the correct venue to file the claim on their d executive of the lack of three years rejected for their position is if you have less than three years experience you make it a waiver for that fact that there is no provision for waiver if you don't have law enforcement record but but this turns on our conclusion that the contract is clear on that point and the marshal service would not take a different view but nothing in the record indicates what the marshal service view of that is that right now there's nothing in the record is there any reason not to ask the marshal service before we decide the case as to what your client was not obligated to seek a waiver so that's your position that's my position i mean you just represent us today that the only reason you're in fact not asking for the waiver is because the contract prohibits right it doesn't allow the waiver on their rejection but you have a balance decided that you without being informed that that is the marshal services view is that right well you know i mean you have to very mind my client has several contracts and has been in business for many many years with you know providing services for the fi government so i don't know what went on in if i'm just things is right here you could not represent us that the reason you are of the view that you are is because you know that is the marshal service is you you're order not based on loyalty you're correct but the the requirement under the executive order is to offer the right of st refusal to the employees currently employed by the departing contractor let's call it that way and we did that we offered you know my client offered them the opportunity to come abroad and be employed by wilding but the executive order also requires that the employees be qualified for deposition and one of the division of the department of labor that's what the executive order at the time stated as i said that has been revoked by presley and trump by now so so that will last i mean the executive order and loyalty cannot scenario for a successor employer no eighty device the liability between then your employer and the former employer if the employees are not higher by then your employer then the former record can i find the waiver stipulating sexual see point forty four what if you question that relates so this is the provision but the the thing in that bullet point that talks about the waiver is that this is the sentence that has the waiver approachable to c s it is currently serving in the capacity of the proceeding contract and may be waived and then it says this requirement is waived for separated or returning the district court in seemed to read that way because the fact that this record correctly my opinion apply you know the district is a footnote saying that it seems like you could have asked for a waiver it was bad faith not to ask for he can't do anything about under law eighty well i mean i mean take the view that there's no basis for a waiver which is what you're saying i mean we could probably disagree on the application of that interpretation of the record but the the bottom line is that the course of action that we have before us is only only applicable austin or eighty so even even you know seen it that way you see it they were never employed by mcmahon there was never a transfer of business here so they they are filing their claim on their loyalty only there is no other claim in this case on their the executive order violation of executive order of violation of the contract anything so i gather that your argument  more service would reject it because the contract would not allow it to be granted but you don't know that the marshal service would take that view because you haven't asked so i just don't understand why you're pursuing that there are no sense of this if you would like if you if you preferred position would be to have the waiver granted then it just seems odd not to ask whether the marshal service would grant you know i'm not saying i can't because you preferred position is that you don't want to waive or even if it's available no no then that's a different view just i'm not saying that i'm saying that the the the provision on the contract does not provide for a waiver but i'm saying that if the marshal service told you that their understanding of the contract was that it did would that change your view they think there's nothing in the record because you haven't asked them i don't know if my client then over there or not right so we have to assume you haven't asked them there's nothing in the record right so you that means the record shows you haven't asked them i don't you can change that by asking them there's nothing in the record if i can address the waiver question the waiver is not a set in stone in the contract is apparent stated but also it's important to note that these two individuals of companies he indicated that in his experience it wasn't a previous contract also if you look at the contract itself portions of which are in the record it's in the appendix you will see that there are position was the u s marshal service would consider it if it were asked for but we won't do anything if the company doesn't as fart so that their own lies judge gonzales honest criticism i believe because all of this was very poorly handled handled in any way in consideration of the executive order and the regs under the executive order on the twenty nine c f r nine point one two that say that they have to accept credible evidence of qualification so i know that the issue i'm sorry can i continue speaking for a moment ok no just know the issues around law eighty are thorny and i understand that however i think the asians on the qualifications of these two individuals are unquestionable and i beg to says these are can change is request by our call these are it's a matter and we have just the reality of thirty two years in which this requirement existed at least in the last three contracts and it was never an impediment record there could have been something internally we were unable to get that information but it was unquestioned that they were allowed to continue working and that they did not have this experience and i did not have this experience because they were part of the original group they were the as similar to what was this year i'm not aware i have no reason to think that there wasn't but i'm not it's not in the record right that there was just continuous service i mean the town hall meeting and all that kind of thing that was particular to walt and i don't believe there was but i can't represent what's in the record opposing counsel i think she just said that well you might have been able to obtain relief unde it was also these two individuals were very affected by this and that was part of the reality of it but i should say i heard a person counsel use the word preemption that was never alleged it was never late  ain you know there's there's nothing to indicate that that's an exclusive remedy there is the department of labor mediation and you say you made a strategic decision not to pursue that yes well that's the way it is i mean i  it was not a few of these two individuals that's what they wanted to see and there's no excuse for me thank you thank you