good morning i'd like two minutes please in the morning your honor i'm jeremy fellows appearing on behalf of the appellant limitless l l c it's an oregon limited liability company  this is a fairly we're standards act case that involves an alleged underpayment by my client of overtime wages now in an overtime wage claim element number one that the plaintiff has to prove is that they actually worked overtime hours and as i have pointed out since the start of this case the plaintiff in this case has never a worked the hours she says or on the time cards that she submitted she says those are the time cards i submitted and we agree with that and i pointed out pardon me she said that she s but essentially the case she submitted an affidavit stating that the hours are that she had submitted the time cards that are in evidence and i pointed out not only that those were illegible but that and this is in my response to their motion for summary judgment i said you haven't said you actually worked those hours and i would point out that our fourth affirmative defense in this case is that you had falsified  to cars and so i was expecting that in response to that response i would get a reply from this hikes attorney saying oh sorry for the oversight yes in fact these are the hours that she work well still we have nothing and in fact mr egan's response when i raised the same issue again on appeal is that i should be a stop for making this argument for reasons which i have to say i find are illogical he's basically saying that my client took those time cards and somehow made use of them to get a tax advantage well that's like saying that that's talk about what's on appeal here if i understand because it seems like  so let me ask you why shouldn't the fluctuating work week apply here well it shouldn't if you it's a very interesting question the two cases that the judge relied upon in her opinion the wallace decision which then in lefty decision they discussed this flexible work week and what is key to an understanding of your question your honor is that those cases are what are called miss characterization cases they are cases for those of us in the business where an employer initially mischaracterizes an employee as being exempt from the aplysia billet is fairly her standards act and the allegation laid later made that oh no they're nonexempt they should be have been entitled to overtime wages so when you have a fixed payment a salary is being paid to someone who is mis characterized as being it is understood by both the employer and the employee that none of that money is overtime money it's all straight time wages because it's a mischaracterization case now in our case it's the exact opposite it was understood from the get go that she was titled overtime wages that she was entitle to coverage under the fair labor standards act and so it's not a situation where one is justified in saying that that flexible work week law does not flexible work with method does not apply which is what they said in those two cases and they said let me just this quote from the decision it was very clear that that was the basis of their decision and this is those who were left a decision that is cited in the court's opinion or she makes this determination it says this court is not persuaded by the reasoning behind the retroactive application of the flexible work week method in the misclassification context because it presumes that the employees possessed a clear understanding that their fixed compensation which did not provide for overtime premiums was for all hours worked will in our case it was clear that the plaintiff knew that she was getting this payment for all hours worked that is a statement that is in the party's joint statement of agreed upon facts so you can't take the position that the flexible work week should not be applied because everyone was assuming she wasn't entitled overtime which is what these cases  seven eight point one one four c state that overtime payments must be made contemporaneously actually no with regular pay actually no it doesn't say that and you can see the the in appendix one i think it's the third page of that in my opinion i have the actual language from one one for subsidy but i don't want to mislead the court into thinking that's not the rule the fact of the matter is that particular provision is cited in the zoo or leskie case as if it said that they made a mistake and then the while this case which is also cited in the court's opinion makes the same error the actual language is found earlier in one fourteen and so it's actually one fourteenth a to b it's sort of counsel i'm a little confused about your position i thought that at this point that your client had essentially conceded there was filth a liability but you state that the real issue is a correct amount of damages if any and is i am i mistaken well you're mistaken to the extent that we are still maintaining as i did in my motion for summary judgment response and and in the appeal that i just filed by we are still maintaining that there is no evidence that you actually worked those hours ok so from your perspective she may not have worked at all there's no evidence that she did it well she doesn't say she worked the hours she's now claiming should be considered overtime wages and that's a that's not because you say that the the time cards are not clear she submitted those so these are my timecard you're saying that doesn't that's not evidence of how long she worked in fact i'm saying that that evidence is in you if you have a situation where you say to someone gee all you've done is submit timecards you you haven't yet stated in a declaration or under oath that you actually work those hours if you make that statement which i did in my response to their motion for summary judgment if in response they simply say well i'm not going to say i worked those hours i'm just going to say those are my time cards and that's evidence that's circumstantial evidence that she didn't work on this alison i mean let me at least my perspective on this you you all paid her the two hundred dollars right there in the record that each day ok so that was it so you must have thought you word or you win the paper in the first place right now they certainly thought she worked in the fact is it turns out she falsified her time cards that's what we are alleging in the fourth affirmative defense and the answer to there at the  they assumed the timecards were correct and i didn't find out later until she sued them that she had falsified her time cards at which point we said you didn't say that you actually want is ours please now do so but if you refused to say that it does not the get back a i would say it's the most important issue on appeal is how one deals with the situation if you just make the assumption that she had said i actually worked those hours because i think you know the trial court just said well i i realize that's an element of a case or really has no elevator do you not agree that your client owes some amount my client owes for whatever the law obligates my client to you are and you're standing up there same possibly cation like you argued that the substantially in your prefer and you have not so i'm trying to get to what you did argue in the pre and how much is o do you acknowledge because it seemed like you did in your brief that your client owes her some amount i just can't i'm just trying to figure out what the dispute is well i need two arguments on the point you're making in the brief i said first of all that she hasn't yet stated that she actually even worked these hours that was point one and that's in the brief and then i said assuming she worked these hours there was an error made by the judge in determining how much money she should have been paid because she refused to use the flexible work week standard based on these two decisions which involved mischaracterization issues so they were they were not on point and that it seems like this amount of money oh is relatively small do you agree with that it's only like fourteen hundred bucks which is why when this case first came out i said gosh rather than go litigate and wind up before the ninth circuit court of appeal sunday let's just write a check for fourteen hundred dollars and you forgot is it beyond the fourteen hundred dollars is it beyond the fact fourteen hundred dollars at this pile as it turns out after we made the payment of one thousand nine hundred dollars the plaintiffs who is now no longer practicing i understand says oh gosh thank you for the fourteen hundred dollars payments i'm now going to go ahead and follow a lawsuit against you and i want is like  grand or something like that with attorney fees and how much is the difference now between the hours that you think that she is owed under the under the fluctuating work week be the fourteen hundred or a little bit shy of that assuming she actually worked all the hours when she said she worked and assuming you used the flexible work week standard then that fourteen hundred would have covered it what i think we're all struggling with here it sounds like if we agree that the flexion fluctuating workweek method is what should have been used ok and if we send it back then you're going to say well before you get to that there's no evidence or she worked at all there right well i would say that and if it gets sent back i have no doubt that the judge will probably say go ahead and you know submit evidence on that if you want  to which point i would then say well we have our evidence i can take depositions of people saying you didn't work those hours which i didn't want to do because the cost of doing that was far in excess of the amount of controversy and then at that point no one could file a motion for summary judgment would be happy to mediate at any time and we'd love to do that so you ok the other question right now are you ok ok let's call misclassification but that's the basic lee situation where somebody just doesn't get overtime when the employer treats them does not ever pay them over time if you look at ms hikes paystubs she was never paid overtime that's not a issue in the case so i don't know if it's a semantic issue that they say you know that she wasn't misclassified but they certainly paid her as if she was exempt from overtime because she never received any overtime kusma cation case or characterization case it seems from everything that i've read that you all are about four or five hours apart from the amount of overtime that is oh my correct or am i incorrect i did i don't know that there's much difference between the parties on the math in terms of why are we here i just want to follow up w mean why are i'm perplexed as to why this hasn't been resolved up to this point what we plaintiff has a judgment that she wants to collect and the defendants think that they don't owe any money i think that's where we're at they pay you fourteen hundred dollars is not correct yes that's so how much beyond the fourteen hundred dollars do you claim on behalf of your client that you're oh i'm trying to figure this out ok so fourteen hundred dollars was the amount of the unpaid overtime if you only if you only pay an additional half time for the overtime hours that would be if the fluctuating work week applied but it doesn't apply and so she gets time and a half that's three times fourteen hundred doubled for liquidated damages so it's approximately nine thousand dollars but if the fluctuating doesn't apply if it if the fluctuating work week know and i can talk about why it doesn't but this if it did apply then it would be the fourteen hundred dollars of liquidated damages and then any claim for attorney fees so that's that would those would have been the damages that the trial court if the fluctuating work week applied and attorney's fees the district court denied the turns as she did yes when and so you agree that under the fluctuating work week the fourteen hundred dollars would have covered i guess i don't have the the plaintiff is still entitled to liquidated damages even if the fluctuating work week applies but let me talk about why it doesn't apply fluctuating work week requires that the weekly salary be the same no matter how many days the plaintiff works and that just absolutely was not the case here when the plaintiff worked less than five days she received less than a thousand dollars each so fluctuating work week just does not apply on its own terms just even according to the language of the statute there was no guaranteed minimum salary for the week because if she worked less than five days she got less than a thousand dollars so that's according to the terms of it there's also the judicially created exception where if you miss classify an employee in other words if you don't pay them overtime if you go along you have to pay time and if you don't get the benefit of the half time damages so and this is that's the same with the belo contract into a seven f which with the two have time exceptions that judge brown specifically discussed when the defendants didn't cite anything at all to give her and thing to go on at the truck court level she took the two most common ones the bella contract under two isn't enough and the and the fluctuating work week under seven seventy one fourteen and neither of them applied because she was not employed on a weird work week basis she didn't receive a minimum per work week no matter how many hours she worked if she didn't work a day she get all of that all of that pay for the week council let's let's assume argue wendel sure that we conclude that the fluctuating work week method should have been applied here and the judge brown miscalculated the damages we're talking not really d in that circumstance circumstance would you be entitled to attorney fees if i well so not at the trial court level she denied fees or previous attorneys worked through the da court to determine the success of the appeal could they get attorney fees against you if they thought the appeal was frivolous if it's if it's frivolous then yes i mean the f l s and that's under the f l s say they would have to file a motion there's no heads and wonder what this is doing of the ninth circuit i don't know what your collecting fees must be but there are many many times i'm sure the dollars involved under either scenario would you like us to refer this matter to mediation before you get a decision from astara what's your pleasure you know where happy to talk at any time i prefer settlement discussions to mediation just because mediation heats up more time i see the value of the time because we have our court mediation solves about a thousand cases a year i was astounded when i joined the court to see how many were more settled that way i mean if you can always talk but i think it would be helpful for the court to know whether you're willing to join i think your opposing counsel said he's willing to mediate whether we should spend more time on this we give you an answer and we will give you an answer if we don't do that but are you willing to agree to submit this to mediation before our court m my concern is as to the amount of time but yes yes we tell you when yes ok let me just follow up on something you just said regarding the fluctuating work week because it seems that you stipulation stipulation regarding the statement of facts says that miss hikes weekly salary was one thousand dollars it's not correct this depletion says four thousand dollars but if you actually look at the evidence that that's only in weeks in which you work five doesn't look almost so if you like i look at the stipulation because otherwise i mean the stipulation means you stipulate to those facts and that's usually all the court has to look at when we're considering i had a mess and that seems to rebut your argument that there's no weekly salary for the fluctuating work week here well but the stipulation says two hundred dollars a day so it to the extent that there's an ambiguity there it's resolved by the other evidence in the record so that's that's that's where that  works i don't want to abandon my argument that the defendants did not preserve this objection that they invited any error by not citing any law whatsoever to the trial court in telling her  what sections if any she should go to that justified the result that they seek which is half time damages instead of time and a half damages the ninth circuit has said in the past specifically that if you don't argue something to the trial court you can't bring it up on appeal and i think that's the situation we have here i'm not sure how much there is to talk about on that issue and i'm happy to answer any questions but i just want to make sure that we reiterate that point we don't think we should even be here because this was on preserve that i can see that the trial attorneys for both sides did not exactly give model briefing to the trial court in this case but the preservation burden is on the defendants in this case to show the  appellant's as to why they're entitled to ninth circuit consideration and on that judgment on your point about the actual language of the stipulation it says that she  the stipulation was that she was paid according to the terms of her contract two hundred dollars per workday for a total of one thousand dollars per work week regardless of the number of hours that she work but that's just what she was paid the fifth circuit put it better than i did and this case isn't cited in the materials but it's a good summary of the situation that says that they understood they were not receiving overtime pay does not imply that they clearly understood their salary to compensate unlimited hours each week brown would be shocked that you didn't say well i wasn't the trial attorney i came in after after trial after the trial for the purposes of the appeal only but an agreement ahead of time that we're never going to pay you any overtime no matter how many hours you worked that's not enforceable under the f l s say that's not in agreement that whatever i do pay you counts for overtime too which is an illegal agreement under the f l s say so there was no agreement here they're at the money that they're going to pay me covers all the hours that i work it was just i'm never going to get paid overtime that's the agreement that's the way that the judge at the trial court read this contract the stipulation as to what the terms of the contract w thank you your honor unless the court has think questions i just want to let you know that when i walk out the door downstairs i'm retiring from the practice of law oh this is my last official act to be here today and i've been then what thirteen different states appearing before a federal judges but i've never appeared before a new york judge so this is a great thrill for me not to be had able to do that today so unless you have any questions of me the only question i would have is a since you're going to be retiring the by the way we congratulate you on your career we'll miss you but if opposing counsel has a agreed to have mediation i think you indicated you were willing but you won't be doing it so that you bind your client to that i have already spoke with my client and letter mendelson firm has agreed to represent them forward if they should need any representation a trial or further appeal or anything else  but if they want to have me i will extend my retirement to participate in a mediation because i would like to see this case get resolved ok very good and we hope that when you go out there will be no protests and if there are i may not have anything to do with you all right thank you counsel for your argument the case just argued is submitted and the court stands in recess for the day