head he kind of ok here we go can i ask you to please speak to the question of whether we're dealing here with an issue of law one issue a fact or  in this case given the thousands of pages of disputed facts in this case at the very least there's an issue of fact on the issue not what's it is it's not employee has a right to decide whether or not to come to work the next day when requested it's called employment and well yes i like it here that is exactly correct your honor in this that is exactly our point this record shows and again the deposition and the in the certification of ms anderson says if you don't work when sleep these requests that you come to work you're on the board you might not work for a week you may not work for two weeks or you might not ever be called back so well that's a right to terminate no different then an employee has  different than with are employed and the choice as to whether or not to come to work is no different than that which an employee has that's not an issue that under darden is that that is not a significant  choice on behalf of the point of drugs if you want to work and keep working in the business where for example mr use of your was there for not half a dozen years if you want to keep working in the one job where it's your only and i said well i guess i'll find somebody who will pick your my business i have a need for that does that make my employee because this business with you you said no i look for somebody else and the and you're out of the answer to that question is again one of the darn come in and do work on a case for you lawyer could get we could fire that person that's not an employee if you have a lawyer who works on your stand and comes in every day and does the work you assign to them the way you want using the rules that you've set forth no matter what paper they signed if you have the right to control methods manners and means of the work they're employees and the issue of whether you form an l l c you put your own law b in this market there are hundreds of law students who would agree to waive their right to overtime the right to unemployment the right to be free from discrimination you're making them right but that's the truth but that is the reality the reason why this is a multi factor test the reason why this is not a test where it's a one factor test is there an l l c the reason why there is  is because it's a multi factor test you have to analyze all the facts in the case thank you thanks very much that's his opening but we've got m to make argument today i cannot predict for certainty what test the new jersey supreme court would apply as their test of employment status under the new jersey wages our law and in the jersey wage payment act but there's one thing i can predict for certainty they will use the test that was adopted by the district court in this case because the new jersey supreme court in all of their recent decisions has not adopted the darn fast and in fact should certify to the new jersey supreme court because having read and we read the new jersey jurisprudence as to what applies to the question of employment status one finds that there is no discernable way to predict with any certainty what the new jersey supreme court would do there are four potential tests that they could adopt in recent cases they seem to have gone to the nature of the work passed which is a hybrid test but it's clear that when you're dealing with remedial statutes that serve important public policies there was not a dock the common law garden test which is what this district court did for that reason alone i think the city should be reversed but more importantly it really is extremely difficult to predict what the new jersey supreme court would adopt and the reason for that is that in various time the jersey courts have adopted different tasks you have a couple federal district courts looking at the new realities test which is derived from the at fair labor standards act and which uses the language in stephan ition to suffer or from it which is the same language you find in jersey weighs in our law and in the new jersey wage payment act has been interpreted by the u s supreme court to be the broadest possible language for finding employment status wordle if that's and that language isn't in dark but if that's the case why would we lie would we need to send it to the new jersey supreme court if the if the new jersey wage and hour and the new jersey which in law both have this underpinning of suffering permit right  and there are socially remedial leap legislation right if if they're properly understood that way doesn't it don't logical consequences follow from that that we should just put in place were do we really need the supreme court of new jersey to say yeah that's what we said as those for well that would be one way to analyze it and that would be one possible conclusion you could make with would require a reversal however there are three new jersey supreme court cases which and addressed the employment test where there are remedial statutes involved not common law master servant issues such as personal injury cases and those are the the nun case from two thousand and seven which is interpret ing the conscious employee protection act which is a very similar social legislation to this in that case they adopted a hybrid test they didn't adopt the economic realities test but that was one and the third is economic dependence which is essentially the f l s say economic realities test how economically dependent were these individuals on the company for their livelihood which is this remark heavy said they were one hundred percent decision of the new jersey supreme court markets versus eastern agricultural societally which in one thousand six the case all which came to the conclusion that in new jersey where the support remedial statutes involve for workers the proper past is a hybrid three part test as i've just described and that and if if there's that line before you let's let's go with that if that's the line of authority that reaches way back in his reaffirmed as recently as five six years ago  and and in fact that's a basis if adopted that would require a reversal and i understand that to be your position again what's why why would we it the answer is that if if i were to if i were betting money i had a project and i in my kids education was off i would predict that for the new jersey wage payment act they would adopt this bit more hesitant on the new jersey which in our law because that uses again to suffer permit language but just has learned of the federal district court and some other judges that he cites in his opinion scribbly specifically says it makes more sense to adopt the economic realities test so it might be that the three part hybrid test applies to the wage payment act and the f l i say economic realities test of advice to the new jersey wage an paid unemployment taxes for these people on social security tax or hasn't for the drivers it has not it doesn't has not doesn't provide workers comp is should have been a blotch to pay all those taxes yes and the states and the state have not couldn't weigh anything for them so why wouldn't you and i would just add to fill out that that the new jersey unemployment statute uses even stricter test which is the a b c test which is then applied by one federal judge on the nerd jersey wage an hour and under that passed which employer has to prove three things that there was no right of control that there was no economic independence and that there was no integral ness to the to the work that would be an almost impossible task for sleepy's to f and therefore they are likely liable under the new jersey unemployment statute if you made a prediction you don't have better kids education on it but there are these various cases that you've cited to this but there you if this was only a question of a master servant relationship such as a personal injury case darden is similar enough to the new jersey master and servant test to be applied but what i think is critical and with this is if you right before my colleagues than a friend who don't live in new york there was a big article in the new york times business section on about two or three weeks ago talking about a union and this group called the independent workers and she learned that the big law firm plan to treat her not as an employee marchetti is more perfect answer that but i've stressed this with them and the answer is no during the time that they delivered for sleep is because they had to sleep its logo on the truck the sleepy shirt while they were delivering for sleep is there's no evidence in the record that they ever that any of the in the things that they're not getting it says that they're not getting overtime and the judge in the lower court specifically mentioned that they were seeking overtime i would agree there's not a separate account of the cause of action listed under the new jersey wage in our law but for things that workers have to get from sleepy's and more importantly if a mattress is damaged or if they go in there and they scratch a wall of the individual they're subject without recourse to having monies deducted from their checks which is why we think there's a serious violation of the new jersey wage payment act which prohibits the doctors except in stress of five circumstances contract with independent delivery businesses to deliver its products to customers right well that's sort of what we're at it that's what's at issue so let's let's get into that the and i want to start with the question that i started with mr wright cheney on the district court treats this as a question of law is that accurate it is accurate your honor because the salient facts are not in  well they seem to be or i detected that there was some dispute about the degree of control being exercised that's not the case that the grid control it is a legal question and yes that legal question is in dispute but the facts that the lead to the answer are not for example indeed the plate this delivery business is due on their own trucks yeah but but are you conceding that they that they were never working for anybody else because as a practical matter they couldn't work for anybody else because he said if there's a matters of arson on the truck you're only doing our business and nobody else's business is that something sleepy's conceding that your honor not only don't we can see that the record establishes the exact opposite point it's true that the plaintiffs in this case form companies that only do business to sleep these for certain periods of time by the way mr hargreaves company stealth was initially formed initially did your honest question as i understood it we should make sure i understand i'll give it to you again and help me if i'm not making it myself clear i understand their assertion to be that we didn't work for other people because in effect it was i us to work for other people because sleepy said if you've got an item of ours on the truck you can't have other people stuff on your truck which is in effect saying our docket might say you can handle other work but as a practical matter you can handle the work that's that's the nature of the allegation i understand they're making and i'm wondering if you can see that because if you don't i'm wondering if that isn't a disputed issue of fact this much is not in this year on it's true that under the idea it's the independent driver agreements that we had with plaintiffs companies with their business it's true that on the days they elected to make deliveries for us while they have our products in their trucks we contract with them not to put other products in the should apply certain claims now is never explained nor has placed counsel how we change the outcome in this case because it would not like it as the sixth circuit ruled in simpson versus ernst and young which we cited in our brief the differences between the garden past and the hybrid testers using the economic reality staffs are not material well that's a remarkable statement because i understood the supreme court of the united states the think that there was a gigantic difference between verb employee expansively to mean suffer a permit and then it goes on to say we have noted the striking breadth of that so the sprinkler the united states's these are very very different standards how can it be authorities including other circuit courts have said the same thing and i think the reason they said it is that as the case laws evolved in the two decades or so since starting first of all it's become well established that all these tests sorry you're if if new jersey sets its law which it does and it sets it in a way that's different from the dark tast as a matter of law how can it not be error to apply a different test than the one new jersey chews of course your honor it would be error to apply the wrong test question is whether it be harmless error and here the answer is yes it would be because the salient fact here is there's only one fact in which the court focus should be this sleaze never paid these individuals wages mr hargrove mr you said vo admit it in their responses to our requests for admission we never paid them any money whatsoever we did pay money to mr hall because he's a sole proprietor but they weren't wages wages or monies that are tied to the work exist then then what you're saying is the label that the the label that's put on it is the term if there if what we call it is wages then it's an employee if what we call it is not wages then the relationship does not that's the definition of employed flaps all that sharing these individuals did not work for salary or wages that's dispositive the second circuit found in o'connor in the absence of wages there can't be an employer a lesion shift in district talk about how he's how the eighth circuit did it so badly wrong your view the eighth circuit got it so badly wrong or at least it's the same short couple reasons first of all huggins is a negligence case turning on the common law in this story second of all in huggin will actually help you right i mean if the assertion is that the common law is a stricter test for employee employer relationship and it's not as generous as the socially remedial legislation that the plaintiffs cl the new jersey law is you should be isn't isn't huggins a case that actually meant should make it easier for these people to win your honor i don't purport to know the intricacies of missouri law i don't know exactly that they're not employees third of all in huggins the defendant own the trailers that the plaintiff companies are the plainest as individuals or forget which was the point to make the liveries it's not a case here in which the  there the court held reversing the board's decision there the court held that owner operators did not employ status this case is also much more like the d c circuit opinion fed ex home delivery versus an r v which again very similar facts and there the court concluded as a matter of law that not employ status existed so even if the court thought hudgins were on point for the reasons i set forth i don't believe that is those authorities are the ones that are better and should control terminator exactly the same your honor that statement is utterly incompatible with the record first of all sleepy says zeroeth already under the idea to terminate anybody who works for one of the companies who contracts with us the undisputed facts are that if we have a problem with an individual works a contractor we tell that contractor and they deal with the individuals we see fit our only recourse is to save somebody does something out of control we don't want that person making a delivery for us we can't tell a contractor to fire anybody which is why when the individuals as a practical matter when you say we can't kill somebody fire anybody i understand their allegation to be again not looking at labels not looking at contract language but looking at the practicality and reality of the situation if they say this person can't work on sleepy's progress projects and we're doing one hundred percent of our work for sleepy's that means we have to let them go not true your honor for example mr hall testified this is in the records in his deposition transcript he testified that if he wanted to do it he was ready by as many trucks as he wanted and do business with as many customers as he wanted he made  people when he cut his workforce by half it interact with us he made that decision the pendent way we miss you sebi on behalf of his delivery companies fire his secretary emma bravo because he investigated and found that she was stealing or he suspected that he didn't check with us he did that himself wasn't trying hard that's correct your honor all his companies had individuals who were employed by them who didn't even drive trucks that obviously they weren't in independent contractor relationship but in the end those may not be determinative because more factors indicated simply are employee relationship you're out of the know the factors you have how can it not be that way you just said it the other way  that there might be some factors that go one way or another but in the end you know yeah those factors up and make a judgment so i'm asking it doesn't that work both ways perhaps i misunderstood your honor's question there are always facts a couple of  for example the company inspected the trucks for safety maintained daily logs ensure the drivers had passed certain tasks or they could deliver loads for the company and notwithstanding all those factors this court concluded as a matter of law that those individuals are not  the same material facts existed in fact sources and so it's true in this case as in virtually every one of these cases that comes up on appeal you can isolate a few facts in the records that were those may suggest employees that is but the question is what do the sali we can't decide to go to state law but a state court certify the question who can disappear can the supreme court decide whether based upon the intricacies of the kansas law to decide whether or not the right to control law that's the case says the restatement test which is exactly the same thing as with garden provides there's no difference between the two under those circumstances and in huggins the driver wasn't the contractor in fact the reason why are one of the issues that was decided by the it circuit with it even though the driver wasn't the person who signed the contract that driver was based upon the control the common management the common rules the issues with regard to making sure that our customers see the same work and the same standard regardless of who is driving the truck that factors like one way some factors like another way but the central point here is they agreed that they were going to be independent contractors they never got paid paycheck or issued do they got paid  on a contractual basis according to the idea and they were free to walk away if they wanted that's the way it ought to be in a free market economy and that doesn't turn into an employee just