mr burke sorry largely performed on the nesson two pipeline project and he was involved in the construction of oil and gas pipeline projects before it went to function dissolved or stopped operating the very least  abilities completed the nest on pipeline that he was personally overseeing and he did so profitably to the tune of approximate ten million dollars or more no duty failed to pay him the twelve and a half percent profit that he was  address the employment issue and we believe that well we believe the car was not an employee but even if he was we believe the court was premature in granting summary judgment on that in the six had been sent to trial the bac twenty non exclusive factors and further that you're not able to mechanically calculate these factors you need to look at them in the facts in the context the case weighed them yes some get more weight some get less weight point it's just the contention of the parties as to what control each side has and we believe part of that should have gone to the fact finder so they could see how wait wait were to summary judgment stage so at this point one side comes forward with stuff the other side comes forward materials so so help me we're not at the stage of the pleading stage where you make allegations and we proceed somewhere where we on the facts that were that were put it so control was that car was essentially put in charge of everything and was left to his own devices wasn't determined upon he didn't have to come to them for permission he was able to do the work that needed to be done using his skills his abilities and the way that he saw fit there's not a close to north dakota case right for employment matters on this issue on this issue specifically for the lean issue there is no real close one whatsoever that we could find we look jurisdictions outside of north dakota that they may be helpful to show how some courts get rules you know some some parts may be advisable but the statutes are so different that we need is anybody else have an oil and gas pipelin do you know whether that language originated in north dakota or whether it was borrowed from another states which is california that i do not know i try to look into that and struggle to find anything that is really just north dakota have legislative history or not some of our states do some don't they do but they're not very helpful it's hard to find the the discussions that were had so i did look into that i'm taking some states intentionally do not pipeline construction lien and that one thing to keep in mind is this lien here is a tool to enforce the contractual obligations and that is how car is using it in fact that's one of the the very first elements of the statute is is the person under contract because let me ask you about that if if this statute was intended to apply to employees why does it include that language under contract it seems like an odd phraseology to use if it was intended to apply to employees and i believe the reason to do that is to show that the parties had agreed that this work would be performed the system isn't coming on and trying to work on the project you know in the middle of the night you submit a bill here they have an agreement they they're doing is every employee in north dakota under an at will contract i don't know that your honor but i do believe that the at will is the general rule north dakota but in this case there is a specific contract that he had with o t t said that you know he's going to be there for one year if they cancel the contract in advance he's entitled to compensation for that so we believe that going to go has been you know back to the employment issue any uncertainty should go in favor of a car not o d t on page five of your reply brief you did a good job of laying out the statute and referencing the cross reference definitions thank you but it did point out to me the subcontractor's not defined right correct now what do you make of that why a subcontractor not define that's a good question i believe it is goes back to the fact that you have to look at the common usage of the language under a contract is within that term for an original contractor is one person and one is working for a sub contractor and those employees is entitle to lean and then finally anyone who's working for some contractor under the original contractor so it's you have the furnishing materials or services as a subcontractor for or to a real contractor but they don't clarify what's the difference between providing services as a subcontractor under the regional or as a subcontractor for an original i believe that and i believe perhaps one of the most important parts of this here is that the person provides labor is entitled to lean labor is defined as work performed in return for wages wages is not defined in the statute but if you turn to  of contractors where greens are made for the performance of work are not classed as wages and so also a person who takes a contract to perform a specified work such as to build a house though he does some of the work and self is a work in our labor and as compensation is not wages so we believe this all goes so the fact that the the court or the legislature use word labor use word wages meant to include employees is cut sub contractors independent contractors do not receive wages employees receive wages like to clarify the request really quickly to the extent there's any kind of close issue here this may be a situation i was case should be certified to the northwest supreme court for determination and this court has listed three factors that considered when doing that one is whether there's any guidance from lower courts to whether so strictly diversity jurisdiction or federal jurisdiction issue and three whether it's a close legal case we don't believe it's a close legal case but to the extent the lower court ruled the other way employee is that in the workers compensation all you're referring to it's in the worker's compensation law it's in the unemployment insurance i believe it's also in the social security disability insurance and all  no it's not only in lots of however it only makes sense that when we're talking about whether an individual is it in for you or an independent contractor at the analysis will be the same the burden will be the same because otherwise we'll encounter circumstances where you know the determination of whether a person is an individual excuse me an independent contractor or an employee would be different between the same parties depending on whether it's a dispute over the worker's comp statutes or if it's a dispute in the context it only makes sense that we same factors in determining whether someone is an employee or an independent contractor in this context as well course the statute could change that yes the search what about your opponent's inning argument that the work that the statute does say the word labor and then mr carr quoted from some of the discussion below the actual definition in the dictionary and if you read that paragraph and you know i can read part of it if you'd like to do it it's fairly lengthy it's clear that what they're talking about is payment for services and the way that they describe it is whether computed by day week or month or by the piece or job which is often times how we may discuss some differentiation between independent contractor  employee payment for peace or job work is frequently spoken of as earnings but there is no difference in the sound of payment computed by trying the words earning and wages often being used together in statutes on the subject goes on to describe circumstances where  you know somebody is doing work and may be getting paid wages but you know it's they're being paid a fixed daily or given a rate per unit use or other circumstances it's not as clear cut as as obviously indicative of employment as mr carr has indicated in his briefing primary and only in our our position is that it's the only test to determine whether someone is an employee under the court of law you know we weigh out the factors in our brief we lay out the facts that we believe support the conclusion that mr car employee i'm happy to discuss those although it feels a little repetitive so i'm going to proceed by just summarizing a few of the most important facts that we believe support the conclusion that he was our specifically by or did he not to pursue certain projects because o d t did not have the capability to take those projects on his services were integrated into the business operations of o g t t his economic success was dependent on o g t's and vice versa he was required to render his services personally he works full time for he was paid on a set schedule i believe it was five thousand or fifty five hundred dollars per week regardless of the number of hours he worked or the number of projects he completed in that time paid his business and travel expenses and determine which expenses were paid or reimbursed they provided housing and a truck and other contractor that that income first of all he would have paid his own taxes he would not have withheld them and secondly or did he would have issued a ten ninety nine instead of a w two for his earnings  that so i don't even thing like that in the record there's not as far as i know and what did the plaque on the desk say and what did the sign above the door say i unfortunately i don't have that specific information those are good questions and i sort of kick in many others a  hone directory in the internet directory of the website yep so how did they show him i know that they did provide a hotspot for him to be able to do his work you know remotely out excuse me remotely out on site and things like that but i don't know  i know that they provided his truck i don't know whether the truck was specifically branded o g t t or if it was a sort of generic pickup truck kind of a thing you know unfortunately i don't have the answer to those questions that information is not in the record as you can tell from my argument is that he was our employee and then the question becomes whether under the subcontractors we in statute in north dakota an employee is entitled to a detailed we in our brief we we've identified three categories of people in title two liens under the statute all categories are sub contractors it's a little complicated so i'm still to what if we broadly that does not necessarily result in a conclusion that he is entitle to a lien it just sort of changes the analysis a little bit do you concede that it's ambiguous i do not concede that ambiguous our position is that there are three categories the first one is any person who shall under contract perform any labor or furnish any material or services as a subcontractor under an original contract or this category is and is intended to sort of income to the the construction relationship that exists construction contracts are fairly complicated projects are often big and sometimes sprawling and the statute is designed to make sure that it encompasses all subcontractors on the project so when they're talking about this first category the subcontractors under an original category they're talking about the vertical relationship between the original owner of the property down through the original contractors on the project into the subcontractors all the way down to the bottom layers of subcontract ok do you think that phrase includes two or three tiers of subcontractors or does that first phrase include one tier of sub godric i believe it includes all of this up contractors the come under an original contractor all the way down to bottom i don't think the statute is intending to write out any type of the i'm just talking about the first phrase a subcontractor under the original contractor right magid had a comma there right ok right so you say that includes all the tears all the way down right ok go ahead and what's the difference then between that and working for or to an original contractor thank you for asking that question that sort of is where the statute catches all the other types of subcontractors who may work on a project so as i said these projects are typically very complicated the relationships are very very tangential and there are circumstances where an original contractor or a subcontractor may bring in a supplier or a sub to do one discrete thing for instance they may hire someone to deliver concrete to the project that relationship is just a discrete relationship between you know the person in the vertical relationship and one individual who is supplying that service to or for the one stoplight does it include the employees of the original contractor or subcontractor know why not it's his labor performing the labor to an original contractor subcontractor so you read it that is what it says so it gets employees of an original contractor and employees of a subcontractor surely not only if you only have you read labor to only apply to employees you know i read labor to mean anything labor i mean action right ok let me let me back up a little bit i the original contractor employee of a sub contractor may have a lean year as you know that's common in normally you know material in salinas they still call them in that in my state they have the man in their material mentally so why not an employee of an original contractor an employee of a sub contract well labor is defined in the statute as work performed in return for wages right and what laborers do right always do right but i think that what i'm saying right you follow the logic why doesn't it mean any person who under contract laborers for an original contractor or subcontract because you're reading as a sub contractor out of the statute that that clause it says any person who shall under contract perform any labor let's say we're just talking about labor as a subcontractor it has to be as least up to you equate that to prep as issues under and or is being parallel kind of as a subcontractor to apply to all of that right correct as the subcontinent you have the problem because you're reading says as a subcontractor is all the tears and everybody cracked the statute is redundant the think i can see where that confusion comes in when i when i'm talking about these sort of discrete relationships i'm not talking about for instance somebody who's got a contract with the subcontractor that refers back to the original contract that flows all the way up it's more like a subcontractor who provides services on a purchase order sort of thing where where they're providing labor services materials to a specific contractor but they are not counsel it seems to me that the further you get into the statute the more confusing it becomes but one thing we know for sure is that the term under contract applies to all the subsequent categories and isn't that really the key  so that that corresponds with this interpretation that were engaged in here so the under contract has to be applied in each of our three categories and what it's saying is that any person which the statute defines who is acting under contract as a subcontractor to perform these various services furnish materials or labor sorry material or service entitled to a lien if there is not a contract that sets up the sub contractor relationship that sort of denotes how these parties are related to one another then the person then they are not entitled to a lien under the but as as the police pointed out in the brief control is determined by looking at all the other elements so you really do need to look at all of the elements to determine controls not just you do this and he does it so what element goes in your favor it seems like almost all of them go the other direction well and that's the lower court acknowledge that there are a number of factors on both sides and the just never made any determination on that he said the majority are or here is already on the side so they just there's so many factors they all need to be sure what more i really have to add to that other than point out your i guess to to clarify that that the labor is meant to cover all work done by weight are done for wages and wages again it comes back to that employee issue do they have to be employees of a subcontractor though they don't have to be employees in some way now to be careful because the first phrase you understand clearly says you agree covers the first year subcontractor as a subcontractor director you agree that's a first year right  contractor is the first to yeah right you agree that now what the second one for to an original contractor subcontractor that sounds like an employee of the original contractor or subcontractor right yes is an employee of the original contractor or an to correct that your best case right but it's got to be an employee correct for for that tear yes thank you and then the third tier is that also covers a person who operates as a subcontractor under and original contractor i believe there are four tears that are covered