it should be sent back for a new trial because trial judge did not allow the jury to evaluate obvious to seven items i'm sure applied at all and then there's a bigger issue than the bigger issue is what constitutes a bona fide commission plan and i want to speak to the latter issue st and i'm quoting from judge its waters order in the summary judgment and seven i exempt ssion provides that all the earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee and judge fitzwater goes on to say that the th circuit has not yet spoken on what constitutes a bona fide commission plan under this particular exemption to overtime courts and other districts have noted that by requiring that a commission rate is bonafide the congress apparently envisions a smell test one that reaches beyond the auto repair business and for the st segment of his employment there was no problem for the st three months back in two thousand and fifteen he was paid hourly and paid overtime when ever forty hours a week however the issues set in when the owners decided to implement this this bonafide commission plan quote unquote now exemptions under the f narrowly construed against employers and that's because if an employer is going to deviate from regular overtime pay they have to do so in such a fashion that unmistakably and plainly fits within the spirit of the statute in this case the up ellie's adoption of this plan it just doesn't meet the smell test i mean i can't think of any other exemption have struggled so much because of just an absence of binding precedent on what a bona fide commission plan means that they've resulted to a smell test and i think that really what the courts are trying to say if i  venture to take a guess is that the smell test basically means when there are too many questions about it it doesn't plainly or unmistakably fit within the rubric that congress and vision when it came up with the terms bonafide commission plan as opposed to just a commission plan for this case we know that all of mr lay out his paychecks after he went on to this bonafide commission plan all said salary on that that would not necessary notify that this was a commissioned plan it doesn't nullify but it creates a question and i'm just my point is when there's too many questions involved i think that that automatically translates that they can't be a bona fide commission when it may be a commission plan but it's not bona fide especially in a case like this where the employee was paid by the hour and over time and the employer admits that it adopted this plan to do at least give the employee that salary or that fix  going forward into the commission plan and that's why mr lay elves checks throughout his employment whether he was hourly or under the commission plan always said salary and commission because he was always guaranteed this salary payment now the employer says well there was no guarantee but we can't find any instances where mr layout ever made less than what mr lay alice as was the guaranteed amount he made under the hourly system so that in and of itself when there's too much of a guarantee involved courts have found that that is indicative that it's not a bona fide commission playing that's one of the factors the other factor is that there was a disincentive to work more hours as i envision what this plan is trying to do is yes to motivate the workers and who have somewhat we paid it to jobs and and there's some evidence that other people in this business had come up with similar sorts of incentives but they want only want to incentivize up to a certain level and get in work hard to maximize their income but they don't want to also and be paying even more than they  thought were legitimate i don't know why that would not make it bonafide i'm not even sure that's what the other side or in that was that was doing but on the face of it seems to me to incentivize for a robonaut to make him drain the bank completely and make some sense well it may make sense that southwick but the problem with this particular case is that none of these cases that have ever been cited to honor the underlying proceedings have ever involved a compensation scheme under which the employee was guaranteed that he would be compensated each pay period for a certain number of flag hours at a certain rate with any additional hours being compensated at a sharply decreased rate i mean that's what sets this case apart is that you had an employer that basically told the employee look you're no longer under the hour the system i'm going to give you this set pay that i'm going to call the salary even though the employer explains that away and why they termed it as such on all the paychecks but once you hit a certain point there is not only a decrease but there is a sharp decrease in other words when he went over his flag or limit he was paid three dollars fifty cents an hour placing that i think underscore i think but the bottom line is that he was working a whole lot of hours far far more than he got under the hourly system when he was just being paid overtime and really what what we think happened here was that it was an employer who needed the extra hours and just found a way to to work these employees including this particular appellant very very in unreasonable hours and just not compensating them with the overtime law required and and that's what that's what we find is the problem the other issue is that the employer did not keep track of these hours on a weekly basis and under the act they have to do that the employer says well it wasn't practical to do that but the statute says practicality is not the consideration it's practicability it's whether or not it was viable to do it and there was no information in this record that the employer could not do it in fact we've  d several places in the trial record where this particular employer did say it tracked these flag hours on a weekly basis but for some reason decided to dispose of these weekly records  therefore went to this averaging on every on a two week basis and it just it doesn't meet the smell test and certainly if the rules that this court has followed and every other court that i know of  that exemptions have to be narrowly construed against the employer i can think of no other case and i mean this is the classic case where it doesn't it doesn't merrily get fit into this little hole that the employer tried to create too vague paying overtime also let me get you to move into the jury verdict instructions jury verdict form instructions that were behind it that were about what to make of the statement and one of the verdict form questions that over time as required by law wasn't paid because i certainly have a lot was not paid and then you which is the plainest burn and then you get into the exemption which is a defendant's burden but i don't really don't see that too well explained to the jury to sort of tell us what we should do about what you think is a instructions as to what the plaintiff has to prove in order to show that he did receive them the the issue in this case was that the party stipulated that overtime was never paid and that the plaintiff worked over forty hours a week so what we think should have been done is that the district judge should have granted a motion for directed verdict on the fact that overtime was not paid and only allowed the jury to consider this exemption issue in the verdict for way exactly and that's one that's really where the problem with this verdict made him say you probably have done his bit but what struck me about this is the very form itself is not to me and it's our standard  it isn't all that clear of juries been hearing about what's been required by law and what's not in either one of you and in your recollection argued to the jury about how to interpret this or did i just look through them honestly the district judge described what we cried byelaw and matt even though you have another requirement coming that's coming in the next instruction i don't think any of you really talk to the jury about and i wasn't the trial counsel and all of tender for this case but i don't believe that it was because this was just a standard instruction that if the jury is to find that the plaintiff has to prove three elements of his i'm not surprised that your you didn't know what to do with this right and now we're here trying to fix it if anything's wrong maybe nothing's wrong we'll have to sort that out we hope that you find something but the jury verdict form should not have been conditioned i mean that's the that's the are the conditions in our pattern jury instructions i was looking at the ones that we have on our website and there is a condition there it says if yes then skip to the next great and i think that for these type of cases where over time it was admitted that it was never paid and that overtime was always work with that's a non issue that a directed verdict should be granted on that if not then the verdict form should say go to the next question which is the exemption and therefore we don't run the risk of having to go back and having a new trial just on that exemption and when you say not condition do you mean it shouldn't say if yes this and then do this if no then do that right my point is that it should just say consider the exemption but you're not arguing that in any way the district judge deviated from our pattern trains for no no i am not arguing that and i just think one of the particular facts of this case where overtime was clearly worked though it was a non issue the guy always where the plaintiff always worked overtime he was never paid overtime so why even have the jury check that question off and if you're going to do it as the district judge certainly let them get to the exemption issue to show that they didn't conflate the two in that i mean that the way that the instructions are laid out the plaintiff has a burden of proof and then the defendant has to prove that exemption but in this case the jury just had no guidance whatsoever as to what to do with that nd question what if the jury had ignored all of the questions skipped all the way the back of the end of the form wrote in there in the form ins are present injuries presiding jurors don't own handwriting no liability zero dollars what would we do  but that's a very very interesting question joe i think that because we have to interpret it if there's any way to make sense of the jury's verdict right we are obligated to do that right and  think that because of the way that the jury verdict was laid out i mean had they gone to the end and just said look after considering all the evidence in this case we find that the plaintiff is entitle to zero and i think we're stuck with that but in this case that's not the way that the verdict was laid out it said that the plaintiffs prove in the plaintiff doesn't have the burden of proving women of the fences and that's why we think that at a minimum it should be reversed on that but there's a bigger question out there and that we you know we were hoping that the court will find that this was not a bona fide commission plan for the reason that we've stated  understand what you just said about that converting form said that players must prove it actually is a plane is going to prove whether it has a plane a proven that the defendant failed to pay him over time and that's what the this verdict form sad so that was an error is that what you're talking about is i mean that was an error for the district judge not to grant a direct ok ok i know that point but the instruction itself the verdict form itself is right or to that is your operated this body shop at a loss they were paying all their employees really in overtime they paid mr lee for the st three months sixteen dollars an hour and twenty four dollars for every overtime there that's not in dispute and then after checking around with other body shops they found that there was another method that was used on those of those by the way this plane has stipulated that magic touch is a retailer services stablish them so that's one of the elements of the exemption that's not in dispute in checking around they found that individuals were being paid by commission on a flight or hourly rate lag hours points t shop in the body shop where they crept by people like mr lay out and then paint it and then deliver to the customer so that was successful and what happened to the employees mr lay i was changed to commission plan for the  sixteen dollars twenty four hours of time and when he worked in a two week period the pay period ninety one hours here and probably one thousand five hundred dollars into the st commission plan we have a two week period in which he worked ninety benefited the company and a benefit to the employees now there are a i just want to respond to one comment i think there was a reference to weekly pay documents which were disposed  of i want to take issue with that there was never any such issue of any documents that were ever disposed it's not in the record it's not before addressing bonafide exemption argument i would like to at least run down what lesson to dispute in the strip what was never in dispute it wasn't disputed that the defendants were retail services stablish but it wasn't disputed the hours he worked estimates in the repair orders to confirm that the flag hours were correct he missed really how it was paid based upon flag hours that were quoted to the customer exact proportiona ty that one would expect in a bonafide condition plane so when mr brody white after spending typically about fifteen hours every two weeks because they were paid on a friday every two weeks he's been fifteen hours off and working till four in the morning to complete and make sure that all of these calculations were correct this was not a computer was it practical for him to do that every week you know that was the evidence on practicability hours work in response to that argument we have said in our proof it's just very clear if all here and in each week with six hundred and forty dollars in order for him to be paid less than ten dollars in media tents per hour he would have had to work more than fifty eight hours in a week and the document in front of you specifically exhibit fifteen d lists the actual hours he worked in each of the weeks and you'll note that nowhere does it appear that he ever worked more than fifty eight hours in sin week that any of itself even if we had to prove which is not true even if we had to prove it on a weekly basis we have the court properly instructed the jury that proof of the ten dollars eighty eight cents per hour can be used by taking the total commissions over two weeks dividing by two in then doing a county lation to compare it to the number of hours worked to see if it's always over ten dollars an idiot since your owners can do that with just the documents we have in front of them now what else was not disputed it wasn't disputed that under the three commission plans his total pay each pay period always differed is that symptomatic of a bonafide commission playing of course abuse and the court can see that by commission from what else was undisputed on average mr lee how as i said earlier was credited with an earned approximately three hundred flag hours every two weeks pay period how can we know that look at plaintiff's exhibit thirty seven dollars also provided to you in the folder the th the th column from the left total flag o it creates a disincentive for anybody to continue working after the st one hundred flag hours paid at twelve ocean eighty six dollars who would consider working at three dollars fifty cents a flight oh mr lay he received after the implementation of the st commission plan was based upon the flag hours he worked at that is an admission that he wasn't paid a salary or guaranteed a salary as what else has admitted that every flag power that he was credited with was a flag our drawing from a repair order which was drawn from an estimate which  rd element of the exemption which is that more than half of his commissions were half of his compensation were commissions but there's no evidence and the only evidence you say is look at the pay stubs it says salaries so obviously that's not more than half so without any further evidence we can resort to mr lay out his own admissions that all of the money he received on the commission plant were paid based upon the flag hours he receipt so that's conclusively established now i would like to go to the issue of the the final two issues and before that i will say this your honor you heard testimony mr lay o or at least the evidence of trials to get indicated which way i was fired for extortion trying to stuart somebody and also that during the course of his employment he was not following protocol and taking the next car in line to be prepped why do offer that it was not to suggest he's a bad person we'll ask him because when he said when he took cars out of line what he did was keep actively said look customers you may be expecting your car to be ready thursday but it probably won't be ready friday why did he take a car out of line because he knew that by looking at the repair order the next car that had to be prepped by him before painting he saw that the  showed work that was going to give them a certain number of flying hours and he knew how much work with it but he also checked the other repair there's other cars and he soon found a car that was going to have him were flying hours for a little less work put it back together and a way that that would allow us to use if we agree with it we may not with we if you we agree with what you're telling us and i do think the johnson case it was that each of you that think of discussion you brief at least your friend on the other side did does say this is the way you go and the plaintiff has to prove three things including that overtime was not paid according if we quire by law except not really required by law if you keep going but nonetheless that's what our verdict forms it and they said no that we don't even have that issue here and you're telling us effectively that's maybe the right answer but that's not the way i think that question was prop interpreted and then this is a bona fide commission plan or how that would work out in these particular set of facts and that's what you've been telling us the last i don't know several minutes has been that what this thing was three things are st the phrase required by law doesn't affect indicate that the jury have the right to and certainly did consider the only issue in this case was to day trial from day one and they ar the exemption applies and therefore we had no obligation to pay him overtime that was through out the case there was no other issues and so it's certainly a plausible for the jury to look at that in say it's plaintiff burden to prove what you are now telling us that's right in the jury can also consider the evidence as to whether or not the exemption applied and look at it regardless of whether the burden the state can look at th evidence and say as they obviously did and say this is not required by law and therefore they answered the way they did now i would say as a nd or if they do you agree that's an inaccurate understand used at this trough that to defending forces i understand and i think the distinction is if pad this jury forms that debate fail to pay over time the answer would have to have been yes and i would be and i would not be making this argument a form actually says required by law and i think that allows the jury and i do believe that during the close during closing argument i have walked through the various questions and told them how to answer them and pointed out that it wasn't required by law because of the exemption answer question for as to the nd commission playing no they didn't answer question seven you look at the document we presented the jury verdict and you flip it over you'll see that answer a question eight no question was the exemption and the judge after reading that asked the four person if there was some confusion for person and said yes your honor we'd like to go back they went back and they came back and they crossed out number eight answer of initially and then they answered no to question number seven their point is that some evidence that the jury obviously i'm not arguing that the jury said yes because they crossed out no on the exemption but it gives some indication that the jury understood what it was doing when it answered no to questions fourteen and seven and finally your honor i think answered against but then they crossed it out and initial the cross out indicating that they had inadvertently put eight no under eight and then they put no under seven when it ultimately came back to the final review think the final resolution that the court can take and i think should take the reason i spend so much time focusing upon the undisputed facts and the fact that their arguments predicated upon what the paystub say in their arguments predicated upon the fact that we didn't calculate the commissions on a weekly basis and only on a two week pay period basis those arguments don't support the jury heard so this court did not apply and i'm saying that no decent will to no jury could have concluded under this evidence that the exemption did not apply and i quote from exhibit two the trial transcript where our trial counsel pleaded with the just the district judge to allow the jury to get to that exemption question and mr collins i quote saying i don't think the jury should be required to do so and if it comes back it comes back that's exactly what he told the trial and this is the the problem that we have by making that verdict form condition in a case  over time was stipulated to that it was never paid and it was always worked so at a minimum the case should come back on that issue but once again there's any suggestion to the judge to start with the next suggested or alluded to the our motion for directed verdict on that st question for him just to establish as a matter of law that no overtime was paid since everybody agreed no overtime was update and it was always worked but i don't believe that we specifically said judge just let them answer that exemption question st or something like that i don't recall any of that happening on this record on set of questions normal things and anyway yeah well we've had cases before with exemptions where the judges do allow the jur to to consider that question st and i believe even in one case the defendant presented their case st because they had the exemption to prove that they actually went st in the case and last as a plaintiff would under under these circumstances also the fact that the jury found against the defendant on the verdict form and then crossed it out is further indication that they were confused as to what was going on here and so at a minimum we think that the case should come back on that but the bigger picture that i alluded to before i think that if you're if i could ask or be so humble as to ask that you do establish a rule for what constitutes a bona fide commission plan that's needed because you have district courts all over the place all over the place and i don't i don't think that that there's been an appellate court that has you know been afraid to answer the question i was i just think that everybody relies on these district court cases that are very sporadic one for example homes and on the fact that there's a disincentive the other says well it's more like a salary system and not a commission system how many factors would you like us to put in  jury not being able to get to that exemption question because the the verdict form was condition but we also asked that the judge find as a matter of law that this was not a bonafide commission plan i mean what does it mean that exemptions are supposed to be narrowly construed against the employer what does it mean if in the things like this an employer can do whatever it wants a salary on the paychecks but it really means something else disincentive ised if it's true that this can that the plaintiff was working three hundred flag hours every two weeks and he was getting three hundred and fifty dollars an hour for those extra hours there's something wrong with that but the workers only something wrong with it if those flag hours bear a resemblance to the actual hour and in the data it seems like both sides agree with showed that the actual hours worked were somewhere in the range of sort of eighty to one hundred and flag hours worked were whatever four hundred dollars over the course of the pay period one hundred dollars at the st rate in and three hundred dollars at the nd so there's obviously a massive discrepancy between the hours actually the shop and flag hours that are being either paid in this commission system or paid the bill to the customer well i think that there is a disgrace that there is a discrepancy but it's the employer's burn to prove the shonar he's got they've got to keep records showing what these hours were they didn't of the evidence at page fourteen of our reply that evidence in or do show the appellants could and in fact did track flag hours and the purported commissions flowing therefrom on a weekly basis but after creating these weekly records apparently didn't keep them employers can't do that and still claim these exemptions because they have to prove them and in a case like this where you have an employer who starts up paying over time and and by the hour and the correct overtime rate and then