i would like to start with our first issue of appeal here which is the two of seven k exception which permits an employer to make an election to utilize a work period of seven to twenty believe that that that that very much goes with the intent of the act that act requires an affirmative action to take and to to make a an election to take advantage of this to all seven cake because otherwise it's used more as that the full to all seven case not at the fault for any law enforcement agencies it's an election that has to be made and in this case there was no proof whatsoever that that election was ever made by the employer in fact everything else whether it's public or any kind of notice that is internal leads us to believe that a lection we believe requires some kind of intent to take advantage of this because otherwise it would be at the fault for any law enforcement it isn't really you use the word election makes me think that the statute requires you to follow form for instance with the department of labor saying that we like to be covered by two a seven k there really isn't all that's needed is that the employer establish a qualifying work your honor that is that is correct they do have to have a qualifying work period but in the case of law enforcement foresman and in the case of any job really what isn't a qualifying period to get a job that's you know five days on two days off like mine that is a qualifying work period so if you don't work for a welshman you don't work for a law enforcement no i do not your honor but law enforcement can do two things they can follow to all seven a which is the normal course of things or they can take advantage of the exception and exception it's an exception for a reason it's not a the fault for law enforcement and that that is why we believe that the court in ackley was  correct as opposed to cover how and the ninth circuit which has you know indicated that any qualifying work period can be sufficient  regards to the f l a say and exception and it affirmatively through a memorandum indicated that it was in fact going to take place within an effective date and gave notice to employees that that was the case and notices something that is required under the act what that notice is how sufficient of a notice has been disputed  actually the memorandum which which the court found the terminator is very much like the policies and procedures in the manual for our case which indicate and specifically talks about when over time and how it will be paid for f l est purposes and it indicates that it's a forty hour work period and nowhere in that policy manual which applies to my clients that law enforcement does that indicate that township ever had any intention to take advantage of  time however the court said that the twenty minutes before and twenty minutes or i should say ten minutes before and ten minutes after thank you your honor that employees or the police officers are required in mandated to attend rollcall is included within their their salary now we believe that there was sufficient amount of of indicators which which make been in the contract but there hasn't been any custom and practice saying that this is part of the base pay the base pay is it's based on  two hundred and and forty hour work work period per per year and that divided by the number of tourists that either people or officers who work a six three schedule or five to schedule it's equal to them amount of or the average workweek which is thirty nine and a quarter if you would add or if you make would make the mathematical computation based on an eight hour and twenty minute day that mathematically some possible the other reason why we believe this they are not compensated is because if you look at their overtime rate it's not based on an eight hour and twenty minute work day it's based on an eight hour workday period in fact the chief of police when we had our depositions admitted that that officers are not compensated for either depend minutes before ten minutes after they are required to attend rollcall and other great indicator we feel is the fact that at the end of not anything more or anything less those ten minutes that are above their eight hours they're not compensable because they're not part of those twenty twenty forty hours that they work yearly  case says the court found the terminated of the fact that they employer provided blockers underscores the fact that it's important for that officers to change their uniforms w miserable maybe this use or well your honor that the way that the department has issued their general orders is they're very specific requirements as to what an officer whether he's a uniform or not is supposed to to wear every day with covered in the manual something they have to wear it is something that could be subject to rule inspection you think it's in trying them and it's very specific and it and honestly it's a lot when put on their belt there's a lot of equipment whether it's it's to provide you know safety for the general public or if it's used for their own protection and they're part of it and we're assuming the locker room but there's no requirement is there that you leave your weapons and your form behind no there is no requirement if novels are wanted to wear the uniform home they can do that they can do that but they're restricted as to what they can or cannot do then there's no use remaining about the gun but if the court says that the uniform issue in that case is integral indispensable to the employer and their records will that really answer the  to this argument called rogers versus city and county of them for its eighth district court case and in that case it went the other way which is that george found that that uniform is not really cannot be considered clothing as it commands a sense of authority or compliance with commands and and the judge in that case said it was a not analogous to the judicial broke further in that case the judge said that the uniform also comprises of the safety equipment but with uniform the uniform in that case is most likely the same as the uniform in any police officer yes it was a police officer though in that case the uniform also carried that to all of the equipment which was necessary to protect life and also for the protection of the police officer and interestingly in that case the judge said that that two also two or three zero which is ability so you know this is a rather new case that has happened after about monte which is the case that the district court relied on this case and we believe that that case is also you know furthers our argument most if not all of pellets arguments are predicated on a false assumption and that is that the fair labor standards act requires the payment of overtime after eight hours and replete in this record is evidence of the fact that appellants have been arguing predicated on a collective bargaining provision that overtime is due under the fair labor standards act not under the collective bargaining agreement by virtue of the fact that any time worked after eight compensable was premium  allows for premium pay after eight hours so that cause of action has no foundation the next point i'd like to make has to do with the question of whether or not due to a seven k exemption is applicable here and i  think it's your honour's indicated not any conclusion but your questions raised the central issue and that is whether or not that statute its legislative history or otherwise compels a finding that notice is required and anything more than the fact that in this case for well over twenty years if not thirty years the township teaneck has been operating under a schedule which would otherwise qualify under to seven k and there's no dispute that that schedule has been in effect and on the stipulated record the the appellant's have conceded that that's that that schedule has been in effect and in addition there's no dispute that the second prong of that has under two zero seven k which is that these be law enforcement employees is satisfied so the central point that has been made by the appellants somehow this court should abandon what has been the overwhelming authority to the effect that there is no official notice election as my colleague would characterize it that is required in this circumstance and it's our contention that this court should adopt the ninth circuit's conclusion and calvey oh that that such a notice requirement is not compulsory it's not grounded in the legislative history it's not grounded in the plain meaning of the statute and our circuits have indicated that our other circuits have indicated that is not require on the issue of or the third point that my colleague did not raise but i would like to raise and that is is that also on this record below and your standard is is nonetheless the novo but on this record below it's self evident and won't accept that assumption that the township has not kept their record of maintain a methodology to keep a record of its these really bloody right actually that there are there are five things that were provided to the plaintiffs in the course of this proceeding that would have allowed them if they chose putting aside that the cases are clear that one can simply testify as to the fact that one works for me that we psychoses our brief for the proposition that they could have chosen to proceed not by way by stipulation but could have gone to court and simply at a trial had someone get on the stand and say i worked x day and did such and such but but in this particular case not only did we have the daily blotter that was provided to them we had the tour sheets that were provided to them we had punch time cards that kept that captured all over time there was a computerized system for dispatch records where one could calculate when one was dispatched to a location or not there is not a good that we can tell you when the person got the no but i would say that the aggregation of all of these things put another way your honor there was not insufficient records to allow one to extrapolate to render an estimate as to what the damages would be which i think is the ultimate legal test and the burden under the case law is is not particularly onerous it's it's the courts have recognized that and fair labor standards act cases can make estimates they should have to be grounded on some evidence but can make estimates including the testimony of individuals and then the burden shifts to an employer like in this case had that happened then these records would have been the basis for rebuttal but in addition to the cad system and the records retention systems the fifth category is the full unit status records so the point your honor that we that was provided by the wife of one of the plaintiffs where she extra sought to extrapolate arrested me damages going back to my first point predicated on the notion that overtime was required after eight and again there's a distinction between claims that might be brought under a collective negotiations agreement where arguments might be made that the agreement was violated were here under the fair labor standards act and they've exercised legitimately their rights under the fair labor standards out to try to assert that  for the proposition that the parties in fact had negotiated and there was an understanding that that roll call time was folded in part of the  that comes from the collective negotiations agreement itself the collective negotiations agreement speaks in terms of an eight hour shift but it also speaks in terms of a twenty minute ten before ten after muster time so it's grounded in was back in one thousand nine hundred four dealt with this issue and also talked about elements of control as well and here we have a factual record where it's optional it the if you compare the monte case which we rely upon to the facts of this record you'll find the striking similarities between the facts and monte as they relate to the uniforms worn in and the donning a golfing issues there and the concerns raised by the police officers here as to whether in fact those concerns rose to the level of necessity or indispensability and you'll find when you contrast them with this record that they're identical and that the bottom of the factors under this record have been satisfied and it be your contention that that should be the standard and the requirement to get into you know there's always be armed with philadelphia has requirement that peace officers are always basically and i don't know that i don't know the answer to that your honor whether that they're required to always be armed my suspicion is no but i i don't know the answer to that it's it's a suburban type community suburban urban it's i guess the best example i give it's like as haddonfield is the philadelphia cite says that you never can get to a question of a minimum wage violation if in fact there you haven't you haven't established in the record that that you've worked the overtime and other words that the question of minimum wage the courts have said first requires a plane to four and in this case the appellant to establish that they have worked sufficient hours to qualify for overtime and then the look back on whether or not they got in straight time the minimum wage is really a mathematical calculation so applying that here if if if plaintiffs had established below that they worked the threshold under two zero seven k here for a a five to schedule which is forty three hours the first answer staffers they work the student for the forty three hours then the mathematical calculation is did they in their compensation when you divide that compensation for forty three hours get over the minimum wage threshold and and  d one we believe they did the two you never get to the question because they haven't established that they work the forty three hours qualifying for overtime unless the court has a specific question  your honor so i just want to go back to the burden of proof point that my adversary has brought up and he indicated that there were at least five ways that could have been five things that could have aided us in getting a calculation for the damages and that's just not the case i two thousand and four memorandum that was issued in this case tell what your damages are there are commonsense things you can do to establish what you're trying to say that may not be that you'd be paid under the agreement for that but in terms of your damages your job i thought some of even you could say i was there that we can remember i was there before his shift started or later if he did in fact not come to work ten minutes before and that he left ten minutes after his tour and the person leaves with it to say they're allowed to they can leave before that time but the blotter sheets well always indicate that they left at ten after the hour but the broader sheets will also not indicate this whether that officer spent twenty minutes twenty that that's not the case even if they are involved in something like that and that to a commander requires them to fill out that report after their shift they will sit there and and  we didn't try to speculate how many times an officer in the last four years passed they get those minutes after the ten minutes that they they are in the blotter she  been like go from from their duty because it's not recorded it's not recorder in there and their time and their punch cards for overtime and to argue that we can go back to dispatch records which are undergo some shit for this long that well it's not compensable so why would they ever keep those records and there's not one plaintiff that could have gone and said in august twenty third of two thousand and