the morning our my name is harold caldwell i represent bristol x gig and its owner calvin bristol bristol escalating to the smallest giving company and north central pennsylvania  they primarily did things like driveways and mix excavating for basements and septic systems as a sort of thing fill along came to gas industry north central pennsylvania is not a very cost per series with a gas industry open various opportunities and the visit or the office manager for the company managed to negotiate a big contract a bonus more importantly you didn't have to agree to go along with the bonus program you could've said you know we're just we're not going to do this right i mean i may be face losing employees i don't know how that works but you've made a decision to say ok we will put into place for you our employees this program sex for money yeah we'll help you out is what they said that's what they doing well yeah i would i'm sure promote harmony within the company employees would be happier i suppose if the office manager had said oh for employment and in fact one thing to my mind if the third party had issued checks directly to your employees but what happened is you invoice  between the safety bonus  talisman or somebody on the job site that you dug deeper than they thought was you know you've exceeded their expectations right right it occurs to me that that felt to be the case by people on the scene cra to me the crucial thing is it was never part of the contract between my client and talisman so my client couldn't have counted on it when he entered into this deal  that my client would absorb that additional cost no input on it whatsoever about whether or not the bonuses should be included in could be included in in meeting minimum wage requirements for the employees  are your opinion certainly that i just think is clear here your honour's that this is something that has never been addressed at all by wage and hour in their opinions or in any court case and i think that my point of view is is correct thank you my name is rachel called we're going to represent the secretary of labor under the f o let's say the regular rate is a critically important concept because it is the basis for calculating overtime to which employees are statutorily entitled the lack of case law i think could could be ready either way it has not happened perhaps or cases haven't employees haven't brought cases and the department hasn't encountered it in the field a year somebody outsourcing and contracting for services have to have grown exponentially so lots of fat lots of things in the employment context change and so new situations are presented cause i mean this is not the first case where  factory worker and her factory and her regular way of paid was hermann on how much production she had what's unusual about that is not unusual at all that is longstanding that employers have paid production efficiency safety i mean there's a little bit of irrationality here because i mean if i'm an employer and i decide to have bonus was you know you piece work or you done something and you're value to me and what i'm going to compensate you for it's clearly an act regular great and knowing that i give you the bonus this that's our relationship you're my employee i'm your employer and if you get over time i know full well that's because i believe you've benefited me and that's being put in your over time but when there is something that is of value to third party with whom you have interacted and they want to compensate your employees because of the value to them  over which you have no control other than saying oh well i'll let them get it or not and if not then guess what they're probably going to work for palace and you know they're not fools and then that's included in overtime how  company supposed to determine you know its cost its profit and he could easily go out of business by virtue of talismans saying you know you drill it deeper i'll give you x dollars and these people work like dogs and and drill deeper deeper deeper and all this money comes and then that over time you know that kind of a creates a real problem for a business that's in this i can see how in this scenario it does seem like tow you're getting and that's your employee or your employee that's what you're getting the fact that i'm on going through money that's coming from a third party you might say well it's not part of the employer employee relationship and a terms of my agreement with not at all they were they were announced in advance to induce certain behavior work to work safely to work quickly these are very classic production of bonuses which are nondiscretionary when you see  of the payment and as to the amount there's been no announcement as to how they're going to you know if you see by x percent will give you x dollars if it's very subjective in both as to the fact in the amount then i would agree it is more discretionary but that's not what what exceed our expectations once down it seems pretty dark and i don't believe it was that subjective i believe that the safety meetings at the start of each shift charts were shown as to the expectation as to the rate at which they would principle that if the employer has had some involvement with the setting of the bonus or it has you know determination of the amount or there is manipulation  of there is no showing that that is happening and it's totally under the control of a very already well practically speaking i think a third party is going to be reluctant to do that because it puts them at risk of being deemed a join spent didn't know and this i had to figure out well john smith was working on well number three which was drilled deeply and so was susie whatever had to figure it out but for that you know that other ten they are free at any time just as bristol would be a person who decided to i mean just because you theoretically have the freedom you got you can change the rate of pay at any time and there's nothing but they could say we're not going t know again i think it's along a continuum it depends on how it's the character of the pain and how the employer has has characterized it to the employees if it is to induce certain work efficiency work safety  in most cases yes if it that i mean it makes sense they're paying their employees they're telling their employees we want you to work harder what if you work harder and produce twenty more widgets we'll give you twenty more percent if they're relieving it not specified as to the amount or that it is on a continuum if they have left it completely subjective as to the imagine the fact of payment then it is more discretionary but