my name's dean wrong i'm here on behalf of the secretary of labor who's the plaintiff and your palates in this case with me and counsel's table is taler mcleod from our denver solicitor's office cheney thing about the homeland isn't a commercial cleaning business has developed and maintains a proprietary cleaning process it advertises in markets for customers throughout the oklahoma city area it secures us customers enters into customer contracts there isn't a contract with liability under the statute but but let me ask you this is this the first case of this type or a pattern of this going on across the country give us the thirty thousand dispositive order along the lines of the district courts dismissal here the only case that i'm aware of involved on these provocations it involves the same argument that was presented to the district court here was a case out of the federal district court in texas which rejected that particular arguments but also on the sort of get back to the thirty thousand level obviously the incorporate requiring workers to  incorporate to perform the work is a trend that we do see in a lot of trades that the department season investigates a lot of trades around the country i mean ultimately the corporate structure or the relationship say the district court here made the error of getting essentially distracted and improperly focusing on the presence of these corporate entities with respect to some of the individuals and that's certainly the er employee a worker can have a corporate entity voluntarily or involuntarily in place that doesn't necessarily that doesn't determine or surely doesn't preclude that an initial stage of the litigation from from that that doesn't preclude that worker from being possibly an employee under the law and the district court simply you know there was initial complaints in this case and the district court dismissed from in pretty much the same reason that was articulate this missile demanding complaint and we did our best and we think we we more than sufficient allege that the focus here is the individuals and whether they are employees or not i'm sorry i think i think i understand your argument in the way i understand the appellant's brief i'm not sure they strongly disagree with you there but i see the and they may tell me otherwise but i see them heading towards a different argument and new basis to affirm which we could certainly consider which would be that essentially the complaint doesn't isn't specific enough in that it doesn't allege which which of these franchise owners are our employees and which of them are not because you don't claim that they all are in that all all franchise owners are also individual employees and since the complaint is too broad i guess that well i agree first of all with your initial statement that the th to not seriously tried that in the district courts reasoning and you know they note that in their response phrase i guess i would start with sort of one of the premises of your question which is on these individuals franchise owners they very well may be franchise amazing franchise owners faithful to the allegations that we play but getting to the point about all and we have it's argue that all of the individuals who jenny king gauges to personally perform the reversed a term and whether the workers are employees or not and just because for example we say in most instances they were life lucidly on janet king for their for their work for their janitorial work the circumstances and you know this report didn't address the economic realities analysis and janki has preserved that argument in case this court reverses but we have more than sufficiently allege the economic reality syndicate employee status there is a high level of control both respect for the work performed you know the subject to review the policies and procedures and there's a high level control over the economics of the relationship the customers are jannie things customers they're assigned so the workers anything handles all the payment structure all the invoicing of payment is made such and there's very little investment by the workers compared to the jenkins investment  you know the structure the relation of control these to very little opportunity for profit or loss for the individual workers and certainly the workers in our goal i mean they are actually the workforce of the bulk of the workforce right yet they're performing the very worth of johnny king is a business when you have to do that on seeming we were reminded would you have to show that as to each individual franchise when you have to apply the economic or reality stance with respect to each potential worker well i   satisfies those economic realities and certainly if there are you know clear plain exceptions and that the court certainly has a distraction to decide that some workers are employees and some workers don't fall into that i mean we've had a case for example and in the sixth circuit that's on appeal now where this to court rightly or wrongly decided that some of the workers were employees and some of the workers were independent contractors and you know that's something that it the morning honors may please the court i'm arun van wert representing janet king of oklahoma the real problem with the complaint is that the government admits that its factual allegations do not apply to all the franchise owners but it never says alleges they apply to as a result janet king doesn't have a basic notice of who they're seeking relief for and they seem to be saying pretty clearly right now they're saying all all the workers all the people doing as they don't identify them janitorial cleaners as individuals who personally perform janitorial cleaning work i'm not sure why they don't have notice that that's who they're looking into yeah i've heard their arguments as they've revised it through their briefs in response to this their complaint says something different your honor you know it has this very clear definition one of the problems we have here is we're now talking about a rationale that the district court did not dismiss based on you seem to be conceding the district its rationale to the extent that the district court believe that their definition of janitorial cleaners included corporate entities and they're seeking that we agree that was an error the government agrees that we have preserved the argument that i'm making before  all individuals who perform janitorial cleaning work that's who they're trying to get at the well that's what they're player and paragraph three of the amended complaint well we're looking at the same paragraph but i guess i understand it differently let me tell you the way i understand it and then ultimately i'll explain why i don't think it matters the outcome here it paragraph three is the right one and it says that it defines workers as by selling franchises directly to individuals were sometimes indirectly to individuals through corporate entities owned by one or sometimes two individuals also much individuals here and after referred to as cleaners the also much individuals are all the owners it goes on to say that they personally perform janitorial cleaning work but i do not understand the government to actually allege that all owners do perform that work because they admit otherwise they admit that there are some who don't perform the work that meant that in the footnotes of their reply brief especially a link to the footnote i think it's footnote twelve may be wrong on that and they also admit in their reply brief very specifically that there is some overlap in the say substantial overlap between the category of owners and who they allege as workers but not complete overlap so i don't think mr rommel that is going to stand up and say that they're alleging that all owners are employees and that all honors perform work i also don't think although the government hasn't been very clear on this that they're going to say performing any kind of work at all makes someone an employee because for example suppose there's an owner who is incorporated owns you corporation a employ multiple employees and on one weekend the owner steps in because a worker can show up to cover it i don't understand the secretary to allege that that would make that person the owner an employee and this gives man not just part of the factual the district court is going to have to apply you're right this is a very spec fact specific thing we agree i think all of the parties that this is a totality of the circumstances test that it's an economic realities that m pleading actual facts important at the complaint stage the government acknowledges that they are bringing claims on behalf of individuals they are greedy and we agree that they can only insists that records be kept if the individuals are employees it therefore matters which people they allege are employees and which are not because if an owner is not an ass why would they name and if they claim they are willing to concede that defendant is the only well what makes no sense right i agree that they should tell us who they're claiming are employees they don't have to tell us who they are and if they leave them out they're there but the secretary knowledge of this is page fifteen of the reply brief note for their ordinary practice is to list all the individuals that they're seeking relief on when their relief is specific to the individual they claim that this case is an exception to that because they say it's an injunction but this is not the kind of injunction that applies across the whole janick in business they acknowledge that the injunction will only apply to the people who are employees so this is a situation identifies the employees and is shown to be backed leases that that's exactly right they say back wages as individual they claim this is not individual but at the same time the i agree they can only get the relief for the people who ultimately are employees so it isn't a vigil there isn't going to be an injunction says to janet can you have to keep records for all your owners your franchisees is not going to say that the injunction if they get it will say you have to keep records for the following people who are employees and they're telling us who they're claiming are employees even though they did the investigation in this case as they agree they have express authority under section two eleven a of the labor code to do the investigation they're not like private plaintiffs who come in without the facts they've got the facts there's no excuse here for hiding the ball and the case they point as the most directly on point case it's not from the circuit it's from the eleventh circuit it's the lab case it's another case brought by the secretary of labor they say look to that to determine the rules for sufficient pleadings here guess what in that case the secretary of labor attash an appendix listing all the employees that claim doesn't t repeatedly and the more complex the claims factually complex the claims and the more actors that are involved the more details you need to have to make sure the claims are stated on behalf of each actor this court's cases are most clear on that on the defense side and the qualified immunity and it's repeatedly there the government has said those cases don't apply here where there are multiple people on the plaintiff side is say those are distinguishable that's wrong for two reasons first in this court's robyn's cases very specifically said that the same standard evaluating dismissals and qualified immunity applies in cases generally so there isn't some separate rule there that doesn't translate and apply here that's page twelve forty nine of the robbins decision the other thing is the case that we submitted a supplemental authority that's about a week old from this court now it is another  individuals children were bringing section one thousand eighty three claims but there were multiple children standing attempting to state claims against multiple actors and this court said twice very very clearly that in a multipoint of situation the complaint has to allege facts satisfying elements of the claims for each play into our view here is that they have to alleged and in a class action not in  class action and this is not a class action this is not a collective action either there are collective actions on behalf of individual plaintiffs and they are they just have to allege their own facts they're bringing individual claims and then at the opt in stage there's a procedural safeguard where everybody who wants to opt in has to raise their hand and say yes this applies to me too what the government is trying to do is to get the facts of that without ever having any level of scrutiny over whether it's actually alleging that as to each person now it's not a high standard when they allege it is each person but they've got to do it is to each person if they were willing racked pleading to say we allege these facts are universal as to all of these people they would have to go one person at a time job right they could do that but they've got to be able to be willing to do it the government needs a high standard of quality i don't think they'd make that allegation unless they believed they could what and one other case do you have besides the robin's case i'm just not really seeing how in a civil rights context with multiple defendants and i understand what you're saying about the maddens case but requirements the notice requirements have greater by in a case like that where we need to know what were the allegations against these individual defendants in this civil rights context if that doesn't apply what your next missed so  argument that you make i don't have other cases that are factual like this one from this court that are multi plane cases i do have a number of cases from this court that apply this to this rule the rule that context matters and you have to have greater specificity when you have more complex claims and more actors is repeated throughout this court's cases it's in the s c c vs shields case it's in the khalif or as united airlines case it's there the other one is that the basic statement of the rule is the complaint in that i'm quoting must make quote make clear exactly who is alleged to have done what to whom here the who is and who also either own a janet king franchise or own a corporate entity that owns a janet king franchise that that's the specifics that i know that that they have notice i'm kind of struggling with why they don't have noticed that that is the group that they're directed to well right now factually are on our jana king itself does not have notice which of its owners personally performed work it doesn't have records on that because that's not the structure i mean and this going back to the big picture for a moment this is a business to trademarks in the business a system they are not personally obligated to perform the work they're entitled to hire their own people janet king doesn't monitor who they hire who they fire or any of that labor things and so when the secretary alleges here th everybody that the government is going to claim personally performed work that owners who personally perform work that's not accurate we don't know who they're going to claim that and we actually don't know all the details of which owners actually did the work and which hired people to do i mean that's the thing and to go back into your honest question bigger picture this is not in the record a number of these employment classifications have been brought against janet king in different parts of the country under different laws they have come out different ways based on the individual facts of those cases and the individual state law standards so there's a case in massachusetts for example that there is a written intermediary ruling that there was an employment status there is a case in california where we won summary judgment saying they're independent contractors and there are cases with either various government cases or others that are being litigated so this is a live issue and it comes out it's very fact specific to which takes me back to to our point here this is not a high standard for the government to meet they just didn't meet it in the you sort of reason you claim they didn't there's that they didn't i don't know why they chose to do it i know that is a matter of leading the government thinks it's better to go and as broad as it can is and it gives flexibility whether that's the case here i don't know but here the government's the most sophisticated litigant the country has  resources it knows exactly what it's doing it does not do things accidentally it did a full investigation it did a first complaint that failed it came back with a general second complaint that failed and now is standing here and saying you know we'll just we've said enough we put we told them generally what's going on that's not the standard they have to say who they're seeking relief for and they haven't done it and to your point your honor if their complaint actually says what we're seeking relief on is all the owners who worked i don't think that's what it says because of the way they define that but even if it does they still haven't told us who they think those people are and as i've said not all owners do perform work and they have within their means the ability to list and tell us who are seeking their claim for on this they should meet that standard my time is expired i can answer counsel do you concede that there or among the plaintiff class some members who are pure owners of franchise  marshaled their employees to go out and perform services that have been contracted for by janick and that there are others who are within the class that you're talking about which is direct owner who are also happen to be persons who provide the services directly there there there may be very few franchisees who to that they are not within the pla him in a complaint who have a different fashola such situation they are outside we can't be too broad if we're not seeking relief for those people we've limited the scope of on whose behalf we are seeking relief to individuals who personally perform the work if don't we want relief for those who again we have to find the scope of the people for whom we are seeking relief and to extent that that there are people outside of that that that's great but that's not the case which counsel reference for example involved back wages involvement in pay overtime violations under the bear was no record so we're talking in the abstract well let me let me refer you to section sixteen c twenty nine u s c two we do that not to meet any sort of pleading standard we do that because because no private party would meet separately standard in those cases proceed we do that because if we don't name the individuals in the amended in the complaint that we fall on the answer i thought he also was asking could you do you have that information couldn't you why don't you just amend your name those people we had this exchange we talked to many of the individuals we certainly have many many names i dispute the notion that a an injunction is going to requiring them to keep records regarding a defined group of individuals is going to have to name each of those individuals we do have many many names and