now i ask you since the road regus case in the chavez's case are virtually identical in terms of the legal issues maybe some slightly different facts or would you gentlemen be agreeable if we just kind of meld the two together and give you more time but hopefully we can shorten the time because that other than some minor details it seems to me a common issue do you agree with that i agree with that you're ok and let's do that then  let's let's assume then that let's start off with with fifteen minutes if we need more time or do i think we're going to need that but let's start with that ok thank you good morning your owner's name is max gather on me please the court i represent isaac rodriguez and the certified class in this appeal for from the district court's order granting summary judgment at the time the district court granted summary judgment there was a certified question from the th circuit pending before the california supreme court defendant at the district court in our case moved for summary judgment solely on the grounds of the federal de minimus doctrine the certified question in front of the california supreme court in trusts or versus starbucks asked whether the federal the minimus doctrine applies to claims brought under the california labor code the district court in our case was well aware of that pending question acknowledged it in its order but decided to proceed to the merits and in doing so it granted summary judgment against our clients solely on the basis of the federal them in a mis doctrine citing in various places the ten minute aggregate threshold set forth and lindau in other cases i think you'll find that all of us are totally on board with you to this point i guess the only question is i mean when court of california made it very clear it doesn't apply anymore the question is whether there are in the details of the two cases an ability of the employer to still qualify under trees for what i call it based on something other than the disregards trifles may have some application to the california labor code in wage and hour cases it declined to address any sort of threshold or provide any sort of presumptive  way for courts to rule on that issue in future cases it declined to apply it to the facts of trust or and i think what's what's very telling here is what happened on traffic trustor when it was remained did to the district court and we submitted a notice of supplemental authority earlier this week in trust or at the district court when it was remained it by the th circuit defendant moved for summary judgment again and one of the claims that move for s judgment on was starbucks policy of requiring managers to walk fellow employees to their cars and starbucks had a written policy that required this the plaintiff in trust her testified that it took thirty five to forty five seconds to do that the district court in trustor denied summary judgment citing the california supreme court case which explained that the california labor code  concerned with small things and that this thirty five to forty five nd window was sufficient to create a tribal issue effect such that it precluded summary judgment we said how many how many if i got this right my sense quantified if it's an irregular thing occasionally something might happen that might fit is that a correct reading of trust or i think generally it is i think what's important is to look at the cases that trustor cited for that proposition and if you look at misty achieve versus city of little rock there it was a police officer and the police officer claimed that he should be paid for changing uniforms and it was actually a federal case but the testimony that was cited as finding the de minimus rule applicable was that he had to change his uniform when he got mud on it and not very often and he had to change his radio when he got in a fight which was also not very often and here in rodriguez we submitted evidence that nike's policies require security checks every time an employee leaves the store that's  undisputed it's a written policy just like interests are and we submitted evidence from several store managers that these security checks were not brief they took significant portions of these employees times  if i understand the holding of the district court in your case was the quote the court can only conclude that it is undisputed that an accident spec can take speech means zero seconds and several minutes so that might have been fine before trost there but now we need to know we need a more specific yes absolutely your honor and i would i would direct the court in that in the chavez case now the district court there specifically look to the expert evidence we submitted by dr kriegler and he came to the conclusion that the exit inspections in chavez averaged one hundred and forty four seconds or about two and a half minutes the district court and its order says this wasn't enough because an employee would have to x it five times a day in order to reach the ten minute aggregate threshold that's not the standard and the dream court said the california supreme court said that that's never been the standard but that it gets me back to my question again it seems like the issue here is less the amount of time involved than whether it is an ongoing regular requirement of work you're saying for example in nike that the this has to happen every time there's sometimes it takes more time sometimes it takes less but it is a regular requirement unlike the you got to you know clean your gun if you get mud on it or you're so uniform or whatever is that correct yes your honor i would also say that in trustor the supreme court addressed both the regularity and the kind of temporal time that it takes for these tasks so i think both are appropriate considerations ultimately i think the the district court's decision on remand in trust or is very telling as to what should happen in both of our cases because they considered this relatively small amount of time of thirty five to forty five seconds and tonight summary judgment and i  gather what you're what you're in the two cases are asking us to do is to send it back to the district court for the district court to determine the st instance pose problems whether there are indeed within the small window left in profit or an ability to for the employers to be successful if i correct that's correct your honor because we haven't had the opportunity to everything in lesser to any other questions i'd like to reserve the remainder of my time for a battle very well thank you good morning good morning may it please the court john muir on behalf of nike rechelle services and condors as well the orders granting summary judgment should be a based on the guidepost set forth introduced or which is as it states in its conclusion verbatim the relevant statutes and wage order do not allow employers to require employees to routinely work for minutes plural off the clock without compensation and then in every other place in the trows to opinion where the court refers to an amount of time that requires compensation the word minutes plural is used choicer let let let let me ask you this counsel i'm not sure i agree with your interpretation of what that is but let's just say for a minute that they really do mean minutes if you if you have a regular requirement say it say it say it half a minute a day but over a month of course it adds up to this if you never get number of minutes what did the supreme court intend in your opinion with respect to something like that the supreme court looked at the daily aggregate in terms of that's all an employer can't control an employer can't control what happens in the future somebody can go back and say during the last several years i worked some amount of time off the clock but the choice or decision asked to look at the amount of time off the clock percept and then it repeatedly states that and employer cannot require an employee on a regular basis or as a regular feature of the job to work minutes off the clock ok but in this in this case maybe you should correct things actually what the most of the time the employees don't even break their stride so these are evidence of that in the record yes your honor there is evidence that for nike twenty one thirty seven eight percent were walk outs where no one broke their stride in leaving the store and then the other number was the way the we were banned by what the district court found in rodriguez says i mentioned before the district court said it's the only thing that's undisputed is that an exit inspection takes between zero seconds and several minutes in  only a few seconds as measured by mr crandall or one hundred and forty four seconds as measured by mr craig ler so with out yet a finding on that because didn't have to make the courts didn't have to make a finding don't we have to send it back to find out whether this is a matter of seconds minutes or whatever no your honor let me refer to both the rodriguez case and its obvious case in the rodriguez case the district court credited crandall's numbers in that there was an eye median of four point seven seconds and an average of eighteen five seconds as nike points out the store managers testimony from the depositions confirms crandell study's findings that the vast majority of exits take less than one minute even credit the report from plaintiff's expert there was no evidence to or bought crandall studies conclusion that many x it's too obscure zero seconds actually of inspections lasting more than sixty seconds were not regular construe special based on the facts of our case which show that none of the accidents faction's approach one minute based on the undisputed facts none of the exit inspections approach one minute they're all merely seconds roaster goes to great lengths to explain why merely seconds cannot be part of compensable time even though modern technology might allow employers to record that time you'll never be able to account for every nd of work even if employee does every so called job duty on the clock and the clock is right  door and they punch out as tros do noted in justice krueger's concurring opinion a customer might ask them a question and they might work for a nd or two and answering the question or a manager might say after they've clocked out you did a very good job today ms employees thank you so much and then they've had to work conversation and they've worked for a couple of seconds and you're warns that those sorts of things make sure you get a lot of sleep tonight again those sorts of conversations happen all the time in retail or happen in any workplace but all of the examples that you gave involve jeweled kind of idiosyncratic experiences sure with the but but but if you have a regular requirement in the manual that you have to do these things like being checked out if that's the case that seems to satisfy  the st part of the procedure test and the question is what's the minimum amount of time you take the position i gather that one minute is the minimum is that right i take the position your honor that says minutes and employer that requires minutes plural as part of an employee's regular job duties has an obligation to compensate for that time and we are not after the minutes based on our evidence we're not even at one man  we're just based on seconds referring to the the regularity rather than idiosyncratic issues the concurring opinion from justice kruger also mentions that you could have an employee who every day has to log into their computer in the computer might take several seconds or even a minute to get on line before the employee can clock in for their time even if you have an electronic times clock and you haven't ploy id badge that you just swipe at the time clock that might take a couple of seconds to do that there is no way to account for lost seconds and that's what we're talking about here at nike because the although when i review lawyers bills i often see many of the situation she were describing that's a different context  honor not any that i know but you know it's it's a matter of what is possible based on all of the public policy considerations and poster went through them all including that we have a liberal construction of the labor the laws and the public policy in making sure that we pay for all time worked and that in a class action case there might be small amounts of recovery it's roaster very clearly said that mere seconds of recovery is not warranting this type of litigation that recording every morsel of time is not something that an employer would have to pay because by human nature we can't manage ourselves based on seconds of time i could call a meeting of five employees for ten am and one employee might show up on the dot at ten employees manage themselves by the nd is a very difficult standard just sat me asking up a hypothetical i realize this is not all before us now but we live in a very interesting time of algorithms and things like that could the california supreme court opinion permit the use of say algorithms my employer that based based on experience over a period of time that this is going to happen would that work with and procedure well played of say it wouldn't work because we had an expert witness look at video tapes for hundreds and hundreds of hours of of hundreds and hundreds of  random sampling of the store and plaintiffs refuted that that was a ballot measure of the time off the clock but if there was an algorithm that could measure how long things spent the still would be lost to seconds here and there because some employees walk faster than others some employees stop to tie their shoes and others don't summon floyd he's just our more punctual th district this recording rodriguez liken this to a bag check at the ballpark nothing like that and it's nothing like that the three examples that the district court used to ballpark a federal court house and a airport those all involve a security screening where you have to take something off where it goes through a metal detector where the contents of your package may be opened and you actually are detained and there's a long line waiting usually at most courts in most airports and if our teams do well here maybe not after golden state lost last night but we we have lines and outside our ballparks and so this is not the type of bag check i wanted to do the demonstration because it really is a ok i'm leaving and because in thirty percent of the cases nobody brought a bag or they were able to walk while holding their bag opened and the manager could look at it and there are no lines there are there are there will sometimes be lines and there were sometimes not be lines there are multiple people at the store who are authorized to conduct bad checks there always has to be a manager at the cash register area which is located near the exit of the door and so that's why we have in so many of these cases the employee testified in nike that sixty percent of the time there was no line there was no wait time intro sixty six five percent of the time there was no lying there was no wait time and even if there is a line of five employees ahead of you and with a median of four seven seconds in nike and a control there might be an employee who has two bags on one day and on a different day doesn't have a bag so in answer to the question of can an algorithm be prepare yes but it would always be off by one or two or three or four or five seconds because human behavior doesn't regularly act on the nd i might brush my teeth for a minute today and and fifty eight contradictory way or they said a lot of times they had to wait and there was no way to quantify that the district court was left with ultimately concluding not the depositions corroborated what the record plaintiffs did not seek to aachen augment the record they didn't seek to add more depositions or add another expert study and so to just record having read all of this regard was if there was a different legal standard before they would approach how much time it took in the same way and both the district court in chavez and in roger regas found that there was an average number of seconds for each bag check which was undisputed and in the child as case that average was nine two seconds and in the nikkei case the average was eighteen point five seconds just help me that the district court said well it takes between zero and several minutes when does it take several minutes there may be a case where  we had one witness say that the manager had the flu he was out at the front of the store and he had to run into the restroom to throw up he came he vomited came back and then did the bag check that took several minutes that that there will be apocryphal outliers of those sorts of things but both cases said that the vast majority of the entire exit inspection process took less than one minute closing activities took between four minutes to ten minutes daily much longer than the undisputed facts here when the district court held that thirty five seconds couldn't be lo off that time it didn't say that thirty five seconds individually separately was compensable time quoting from the opinion and this is on page sixteen of the slip opinion it says that when aggregated over time and added to the other closing tasks toaster performed off the clock like sending sales data activating the alarm and locking the door and so the court did not say that the thirty five seconds alone is compensable said that because when added to these other tasks which there was already no dispute over it made it even longer than potentially four minutes or ten minutes per day i think you're honors this obviously has impact on every hourly employee in california and we're hoping to have a bright line rule so that we can counsel our clients and how to respond to these types of cases thank you very much for your argument let's hear from the f not surprisingly pelley paints a very different picture of what these security checks look like i don't think that we even get to that question here because the district court applied a standard that no longer applies to california labor code claims per the california supreme court in any event a lot of these stores are very large fifteen thousand square feet some of them the time clocks are located in the break room or the back of the store it's not as council demonstrated walking four feet to get your bag checked so part of part of this process involves waiting for a manager if you've been to a retail store during the christmas season things get busy but in any event the evidence submitted in our case shows that there's disputed facts if you look at the declarations of michael cornwell he testified he was a manager in rodriguez he testified employees typically would need to rate wait around five minutes alex why typically employees would need to rick way in the range of three to fifteen minutes paul ramos typically employees would need to wait in the range of two to five minutes which is that the trust or court i'm sure mispronouncing the name of the party there but anyway created in effect a one minute bright line rule i disagree your honor i think that the court specifically held that there is no bright line rule and they declined to issue one they could have but they did it well i mean i think what he that is the following statement from that opinion quote an employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not in evade the obligation to compensate the employee for that time by invoking the de minimus stockroom so the us word minutes plural their argument would be implicitly says less of a minute is ok i think what we're not taking into consideration is the ability to aggregate time and the trustor co talked about the aggregation of time over a week over a month and we provide calculations in our briefing as to what this adds up to if you look to the california supreme court's decision in trust or it the time added up to one hundred and seven dollars over a period of seventeen months and yes it's small amounts of time on a daily basis but the trust of court wasn't looking at things on a daily basis it was looking across an aggregated period cumulatively this adds up to a loss for the employees and a windfall for the employer  another thing is that the answer to solving this problem is relatively simple it's to have employees go through these security checks while they're on the clock and clock out afterwards that that does away with any of the problems that we're discussing here and it's a simple solution trost or explain that the employer is in the best position to account for small amounts of time the employer is doing this day in day out a lot of these retail employees they see this is maybe a transitionary job they're not going to complain to their employer about a small amount of time because they think they'll be out of there in a week a month whatever it is and the law in california it cares for small thinks and trustor emphasize that and we think that defendants should care for small things too i'm happy to answer any questions of the question i think you know if we thank you both counsel and so we everybody to consolidate this i think you've done an excellent job we appreciate your argument we will consider the matter carefully and give you an answer as soon as we can thank you very much the two cases just argue