breakdown of how things work during the day even the empire would concede under that hypothetical that from two o'clock to two or five is compensable that's morello's vs freo straight up it's at the appointed workbench so to speak we were here we're awaiting there was a scheduled start time at two o'clock it took five minutes there was assuming compares ability if the workers took the early books five o'clock i was commanded to be here between one thirty and one forty five hours and i answered it as a serious question because i don't seek counsel billy but just taking your point of if you take the early bus at five i mean the employer has a window when you have to get so if you choose to take there really one of five year waiting times longer than somebody who took the last bus so your argument to me if compensable in those persons should get more i mean isn't there a limit to says that we have to exclude that bus time that's what griffin in the portal or like say they're still arriving at the at the lunch tent by six thirty five by everybody's agreement they're getting there at six thirty five so we think that remember that remand is appropriate because the lower ballot is six thirty five whether the people who arrived and got on the earlier buses might also be entitled to additional time i think is a question developed on remand the record doesn't reflect for instance whether there were enough busses such that everybody could have arrived at six at six fourteen and six fifteen or whether as part of the business judgment they had set this time up so that the buses could be used for that they would end up having to have to hire less busses so that they wouldn't have to have all of the buses ready at one time the record simply doesn't reflect that but your honor the remand would be required because the minimum would not be focused on the five o'clock arrivals but the six fifteen arrivals line because that was when they were required to be there the well that was the last buses that reasoning they had to be there yes ron of the records absolutely clear that if they arrived at six sixteen they could not work that day they would not even be allowed if they went to the gates of the plant and asked to be let in they would not be let i had to be there sort of like henry ford said you can buy any colored model t you want as long as it's black empire says you can show up any time you want for your seven o'clock shift as long as it's six fifteen or earlier that's in gauge to wait under empire's reading to the two o'clock to two o five would be compensable they agree but they say that one thirty to two or five to two o'clock or one forty five to two o'clock is compensable there's no distinction i was not able to use we we spent thirty minutes looked at the architecture and noticed the paint talked about where we would go to dinner do to pass the time just like these gentleman they pass the time here they are there in the outdoor tent at six o'clock in the morning or six thirty in the morning in january inside the plant gate they can't go anywhere they can't do anything so they've got to do something but that doesn't make it non compensable in vegas was very clear the guys out in the field in vega they could have chit chatted they could have talked about what they wanted to do or talked about sports they could have closed their eyes and take a nap for twenty minutes while the dark it was dark and waited for the light to come up and somebody to elbow them and say ok it's about time to go out into the fields and start taking the chill is in the circuit seven vega correctly  that was and gauged the wait time the employer had required them to be there well in excess or just up to say in excess of the in advance of the time when the work was actually going to be get employer knew it the employees didn't have any choice in it they were there they were classically engaged to wait and empires only discussion about as essential a to say vegas they go as wrongly decided well except for the fact that more recently this united the supreme court decided the best case right that's correct your honor the busk case talks about a post limon ar that was pushed luminary to the work they all have been working in the warehouse there was going to be some sort of like a security screening this is not activity it is waiting everyone agrees refinery it's not it's not an activity any more than the guys out in the field and vega might have their chit chatting about about sports that's mean it's activity sleeping is technically enacted but it's physically do anything talking it's completely unrelated to the guys also says it has to be and to grow and indispensable to the principal activities respectfully or if it's in this if it's industry if it's i and i i interval an indispensable they're just waiting there like the guys out in the fields in him or us they're like the people in carroll versus an integrated tech group that are told by the supervisors allegedly to arrive at the warehouse at six thirty even though they can't enter until seven they're like the employees in margulies versus tri county these are the district court cases where the employees are told you have to arrive two trains ahead of your schedule train to wait for that train to do there's no activity there just waiting it's like even an i v p versus alvarez footnote a from the from the united states supreme court as explained below our analysis would be different if the employer required it employees to arrive at a particular time in order to begin waiting there's no dispute that these people were that the employees were required by the employer in the exercise of a business judgment but they say and this is true that this was you know this was ultimately sort of a plan that was concocted by a third party but these are sophisticated business and business entities agreeing to somebody else's construct is a business judgment so  ownership of this bussing scheme once they agreed to get the job bid for that job take that job and start it so it becomes exactly like that but why it's as if the employees if this park and ride that didn't open until it opened you know six thirty and everybody had to be there at six thirty to get in and not run by the company like these buses here in practical effect why wouldn't that be would that be compared to put to it depends if it truly took thirty minutes to get in as a screening type activity let's say for security then that would be a policeman or activity that's like coming in and punching the clock that's like when i come in and i have to get checked out by security that's a policeman or activity but the whole thing it is an activity of massing the workforce right and they can't mask them all in one minute through the security gate to the lunch tent and therefore they have to be coming in over a period of time otherwise they company would have to buy too many buses or whatever or have a conveyor belt or something but if the company wants to make that distance judgment they can but not on the backs of the employee of the employee is losing the compensable of the of their time that's a can on things you don't think they can use their cell phones profitably at six six thirty in the morning exempt activity is walking riding were travelling to or from the actual place or performance of the activity while the lunch tan is not where they perform the actual activity that's just where that's like you know the front office it's a holding then but no different your honor in vega if they had told them good guys don't wait out in the fields we need to go wait we're going to go set up a little area around the oak tree over there we wouldn't say well ok well that now it's not compensable because the fields are over there the chili they're picking chili peppers over there but they were told to sort of muster over here that's all this put the lunch tense is just is just the mustering point and the travel was over by the time they got there that's even giving them the time off the bus to get from the bus to get to the the lunch tent if we assume that being sort of the the corollary of what the court has said that you know even if you show up at six thirty at the parking lot you still may have to park and walk across the street or maybe you have to go show your badge yesterday one of the a couple of minutes for that but even subtracting taking all of that in the place and taking out the travel taking out whatever little bit it took to badge and they actually badge in this case before they got on the bus once they get to the ten the tent is just a holding area if we had taken that tent and put it out in the fields and vega vs gasper and the toad said when the guy says have to go in that  surely that would not lead to a different result invade surely i take it you know that if we were to accept your argument that this is a huge refinery and  so empire isn't the only one with this problem i mean getting the number of employees that get into this refinery every day is a huge  crowd so this would apply not just to empire but to it would increase the costs of all the people who are servicing that refinery and it would allow them to be it would allow the employees to be that they you still had to start they were at their desks i mean that's not or that the work stations but not the same thing as this case but if they had told them let's say we're going to take for twenty five minutes we're going to go we have to shut the machines down so everybody go out to the tent they have a tent lunch tent set outside and you all can have a twenty minute break twenty five minute break that would be compensable no question about it the we just th and that's even setting aside the fact that it wouldn't be a true lunch break they can't just sort of say well all right we're going to because we move you away from your work bench your time is not compensable but if you're over here again the example for me is vague if they said at the lunch tent two hundred yards away from the fields would it be non compensable if they're sitting at the tent but it's compensable if they're sitting in the fields i keep thinking about the impact of what it is you're asking us to do here and when you think about that refinery and all the people who work there and the access roads around it i mean you're talking about a substantial increase in the cost of but ultimately these guys are the most prototypical faile labor standards act protect these blue collar workers who are working by the hour who don't have any bargaining power except to do what it is that their employer tells everybody and they act that works and that refinery has to have a start time they all have to show up at seven o'clock and so you're talking about a very large number of people and the process of getting them in and out and at the beginning and out at the end is a complicated process just by virtue of the size of the retiree and and where it's located and how you get there so you're talking about  every potentially every contractor that works there you're looking at a substantial increase if they're in the bussing scheme and of course in all these refineries if there is the time if if the if a mobile than plex on  beaumont employee has to get to the gate at six fifty three and badge in and go through the gate and walk the the the you know four hundred yards to get to his operate ization that is going to be a  except granted but this is different all the political activities happen first and then these guys are put on a wait they're simply put in a in a bullpen a holding gallery sort of like in in well they're not big as was pointed out earlier the into the employees were actually at their assigned fields they were there working in the tent the hypothetical tent the mr warner identified would be some place away from their assigned field where everyone would congregate and as pointed out a few minutes ago could call their girlfriends or they could talk to each other that they could eat at the tent at that refinery it was not their work station it was quite a distance from their work station and as was pointed out a few minutes ago mr warner indicated that he was here at a assigned time and he had an assigned duty in that was to sign in to make himself known to the clerk again he was at his workstation if you want to make that analogy i think that bus is a continuation of the legislative history in the case law regarding the fall in the portal to portal act and it's very interesting to look at steiner because if you look at the in hand gets to that decision it has the colloquy among several of the senators  and he decides what i'm going to you know sharpen my tools or do something like that then that being being at the workstation doing something before at the actual starting time the argument was and the other senator agreed that that would be compensable time then that decision in one nine hundred fifty six was followed by several more the alvarez case johnson versus rageous and the morel us case now again to morrow as was different i think from the current situation because those individuals were at their work stations there was an assembly line at one point that we have from the first circuit the bond free walled case and then when i think it's very similar to the situation we have in front of you today because you saw the that the various appellants head were separated according to what they did some of them during the time that they showed up at their work stations or at work early they talked they you know exchanged information with friends coworkers but only to love them did not win on appeal but two other gentleman did both of them because when they arrived one of them worked on his tools another one had to finish some of the task that had up it finished from the shift before that so in that situation as here is these three appellants did whatever they wanted to do in the tent one of them did go from the tent to the work area but as he said i sat there and i chatted with colleagues with coworkers now as to point out a few minutes ago the individuals who had had the opportunity to be able to decide which bus they were going to take and some of the people some of the original plaintiffs did take that super early one and empire greece just because they took an early one whether was to assist them in their commute because some of them were carpooling together or whether there was one gentleman who said he was an early bird he liked to get up early he'd like to get someplace but he also said once it got to the tent that he liked to just talk or read or something like that so again you have to look at the as basque has pointed out and so did steiner and so did the point of portal act you have to look to see if  the activity was integral part of the principal activity and indispensable and as most were understood the i and i to the principal activities and what about vega for me to talk about reason the lower court did not follow the instruction regarding that completely so well i see here is on the other hand if the workers were on duty in the morning so as to get an early start for their employers benefit be sure that work would start promptly at sunrise or because of gaspar's scheduling the morning wait time is a compensable principal activity but as justice thomas pointed out in the bust decision that if you have that that situation where the test is is it to the benefit of the employer that is not the proper test in fact that was a unanimous decision and i believe concurring decision written by justice so to my heir and was joined by justice kagan and  wearing any p p e no whether it's the fire retardant clone f r c or if it's a hard hat or something like that as to the benefit of the employer it keeps the employees safe it reduces workers comp so exactly you know having that as a test it's just too broad as justice thomas put in his decision so i respectfully suggest that perhaps that even though i didn't say we over rule the following decisions perhaps busk did provide further guidance as to what the court may do in the future what is the significance of the fact that the contract i agree that the other of employers on the facility had to do the same thing everybody did everybody did i mean and i says which is why this decision is important because it it it is a major it would affect more than just  it would and not only at the refinery but at other for other employers also has a very solid significance common problem with retirees and for and for other locations i think that if even if you went to an airport you will see that a lot of the airport employees have to park quite far away and then they get a shuttle bus to the airport again is that you know because they're doing what they were told to do well yes perhaps in the airport situation they homeland security has some direction regarding that but still it's the same thing applied here at the refinery empire had to use the buses now granted there were some situations where some of the foremen were permitted to drive straight to the refinery gate and park over there but the vast that they're just kind of they're smoking what it whatever so  and the under in the decision from the judge problem was very specific broke down just about every single plaintiff's responses to decide two questions in depositions and that as to what they did what they didn't do and you know if there was an issue of material fact those individuals are going to have their own trial now these three are the three who really said i got to the tent and i signed then i want to smoke maybe i talked with my colleagues something like that there was nothing that they did that was that went towards the integrity  indispensable activity pardon folding up scaffolding correct what's the status of be other cases those right now are on hold and what it is but the others are kind of on hold and i know they're slightly different facts but they're very different facts and i so they're likely to be affected by whatever we do that a fair statement i don't believe that's a fair statement your honor i'm sure miss werner in his rebuttal can say something else but i believe that there were enough issues of fact as to what were they doing in the tent during that time when they were not over in their unit at their workstations with the heart with the rest of their p p and doing their work there so they're pinning but not necessarily on a waiting no no not meeting here to very individual and and with respect to that i believe that the the holding in there or as i had as i mentioned earlier involved individuals who were actually assigned while they were on the bus or as soon as they got off the bus to their particular fields to work in the pepper fields and so they were at their locations there were questions as to some of the other activities that were going on such there at their work station so to speak they didn't use the word workstation but they were there at the field that they were going to be working at that was my understanding of what the holding was on that  what is your view on how we would hold in this case in light of vegas existence on our books i mean it's still there and it rules out there a but i see you just sa i'm on the facts is that you're the facts your honor and using going back to the tent the people there were not at their workstations they did not have all of their proper p p e they did not the ones that were referring to right now the three individuals they had not worked on the g s a or the starts cards they had not done those type of things that good for those cases where it's uncontroverted you know of plaintiffs like this that don't even make the claim that they're doing anything in other words with every other case the facts specific like the ones mispronouncing the name but the brand for you walt case that was after big that had the the type a situation where it was very fact specific and i think everyone who works in the area of the fair labor standards  will agree that you have to look at the specific facts i mean down to the you know the title that a person is given for a job the department of labor doesn't even look at that they want to know what does this person do you can sprinkle all the pixie dust you want over your employees and give them any title that they want but it's what do they do and that's what they did in the front  looked at each of the individuals to see what they said that they did and there were the two individuals one was a mechanic and the other individual was someone who may have been some sort of mechanic also who finished up the tests from the previous shift so that's the type i suggest to the court that's the type of review that you have to do in these type of situations now you see i have about a minute and a half  and the one thing that i do want to really suggest to the court is that this idea that is stressed by the appellants and to look at the predominant benefit that is not followed if you look at the supreme court decision if you look at from three ball if you will see that it's it's not that it is to use mr warner's phrase that i and  of the principle activity what do they really do thank honor that the needle that they're trying to thread cannot be threaded if i may make two comments i think we've spoken about being away from the work bench or at the workbench for hypothetical purposes because i think there's a broader issue but let's bear in mind if that's where they want to go this tent was a work bench for the other thirty nine plaintiffs if that be the answer the reason summary judgment was denied is because work was done at the tent they filled out cards they discussed crease safety analysis they did job safety analysis and they're still on the case because work was done at the tent so if if that's go one free world you'll have some that form back some work and some that did it but that's their hook the tent i could take the position very easily that the tent is a work place as well but it doesn't have to be that they've made the argument that not do anything for the employer the workers waiting for their paychecks didn't do anything for their employer they didn't do anything except wait well they weren't in the field but were being paid as part of being employed so they simply and it also uses principle benefit or something it doesn't use integral and indispensable but it does say that while they were out in the fields before sunrise they were unable to use this wait time meaningfully for themselves because the fields were isolated and they lacked transportation as in the next paragraph your honor it talks about the most time i'm not care i might just talking we're just talking about the morning so i don't see why the rest of it is relevant an employer can engage somebody to wait after the day is over just as effectively and just as same as if they can gauge somebody to wait before the day is over before the day begins in either case but the employee standing in line for a pay check are standing in line for a pay check they are not talking on the phone and smoking cigarettes at least they weren't back in ninety four they had a two hour wait your honor from there was a two hour time period afterwards as referenced in the fist circuit opinion it took two hours for the employer to turn to turn the records into the pay or to receive a check to go into town to cash the check then to come back and distribute the cash money to the guys who had been out of the fields but have been waiting two hours for this process to go on in fact the court invade the very specifically and they don't want to reinvent talked about how this was a artificially long and unnecessary pay scheme that these guys were having to wait for two hours because the employer didn't want to write them a check because the employer wanted to go through this the employer engage these fellows to wait for two the workers could effectively use their time for their own purposes correct and there may have to be a finding here on remand but whether the employee is the reason this one on summary judgment is to think ploys these three said they did use it for their own purposes the definition of being able to use for your own for purposes in it security security versus mail order which was a very recent decision twenty fifteen i think from this from the fifth circuit talked about how having a twenty minute lunch with a thirty minute lunch break when you can only use eighteen minutes of it does not mean you can effectively use it for your own purposes sure they could have spent eighteen minutes checking facebook they could spent that eighteen from the minutes doing whatever they want i did not sit here for the whole time i was able to go out and use the restroom i could have taken a moment and checked facebook but i'm not this time that i spent waiting was not from my own purposes by any stretch of the imagination well you're on a contingent fee so your argument is totally irrelevant well if i have with me if it hit my work if i were a nonexempt employee you no one has much traction terms of waiting in a court room got a time certain probably some more apt analogies but hey that's probably a good place to put a period we have you breathe it in we understand the significance of the case we worked with get in or get pre shared the briefing unit and the argument by both sides we'll take the case and submission we'll decide it rowlie pin you know thank you thank you both for of flexibility in scheduling this completes the work