summary judgment was granted against us in the district court in favor of the party with the burden of proof we believe the summary judgment was one based on failure to fly the seven circuits standard factors to failure to consider evidence of record that was material to decision of the claims and rd failure to give us the benefit of reasonable inferences when the summary judgment motion  commissions are usually a percentage or proportion of the ultimate price passed on to the customer here thing it evidence and the record shows that it's not a certain percent sixty five percent to explain i ask your question about the way you're framing this argument in the open is that you're relying on it as i understand it we are we are seeing some factual arguments that were not presented to the district court mike i don't know whether that's correct but i'd like you to aggressive in particular the way you're framing this argument in terms of the district or having a duty to consider all of the evidence of record i had understood that you distributed not regulations to be to consider the evidence cited by the parties in their district court to determine whether the summary judgment record itself reveals a genuine issue of material sex marriage to do i understand correctly that your theory is that the district judge was obligated to do the kinds of calculations that you have presented to us on appeal even though they were not presented to the district judge for example showing the variations in the of sales are our pay or commission i mean that's just a natural thing i mean we didn't take the extra step and do all the mass but we did argue that these this pay plan ha major components that are not commissions  statement like technicians will be compensated hourly based on their sales production i mean that shows emissions clearly there are many remarks like that in the bank when documents we showed their advertisements to prospective technicians would say we had the best technician hourly pay plant reward that rewards top producers up to fifty dollars per hour we showed many  admissions through the depositions through their top management their pay depends on hours were hours worked as a factor in determining pay and hours work is a variable in determining pay bet are all clearly shows that we're not talking about commissions we're talking about hourly pay or in the case of can hear you can yes ok everyone can hear you mister protest think you may proceed sorry about that i just don't know what happened i was saying that we're entitled to the reasonable benefit of the of any doubts a reasonable benefit is of those inferences because the district court determined that these repeated statements in the pay plans in the advertisements in the depositions about hourly pay or hours determining mean the exact opposite of what is said on the documents and in the depositions as to the seven circuits rd factor the type of work is such that the peculiar conditions do not lend  to the work to a standard eight hour workday there's no showing that again it was the defendant's burden to prove that there's no showing that the workers can't be scheduled to eight hour shifts there's no showing of seasonality the only record evidence the records are expert report which examine their business records and shote no season you know the th factor is does the pay plaintiff and the purposes of the say well if the case is from this court such as alvarado and you recognize that this exemption was intended when there's irregular hours or season ty but there are still about two thousand hours per per year works to the contrary that the defendant's own pay records would be presented to the district court show that the average automotive technician works more thousand five hundred hours for them somewhere close to three thousand hours a year and years four years with less than two thousand hours are extremely rare that happened and three out of the one hundred and fifty examples that we have issue to here is brecht's comply with the fifty percent rule which in this case can be characterized as you know to comply with that rule does there have to be a reconciliation  and in commission percentages well there you know there's the cases we cited tillis in cases which find lack of qualification for the seven i exemption say yes there does have to be such periodic reconciliation but there's also several of the cases cited by the defendants which say the same thing crawford makan  gordon in these cases they rely on the fact that there was periodic settlement against the drug commission to determine that these are bonafide commissions guarantee or draw against commission that will qualify for exemption provided the other conditions of the seven exemption are met in cases such as macin a church cited by the defendant recognizes that quote defendant's compensation plan requires periodic settlement cama an aspect of a straight commission with a draw plan noted in the regulation and what that's that's telling as to whether there has to be reconciliation here the deal well handbook also indicates strongly that there has to be reconciliation in the g o l handbook is entitled to judicial deference  now the district court appears to have been the st court to reject the idea of reconciliation but without reconciliation between minimum pay and a commission percentage the only way you're going to have pursued proportionality that the th circuit identifies as a major factor what's a commission is if you have an occasional stroke of luck that the percentages just work out  issue three again there's just too many hours here to fulfill the burden of art to fulfill the purpose of the  f l i say you know dial vs period time decided within the circuit recognized jury questions and strikingly similar situations including what provides incentives  whether the pay system was in fact mission based whether the pay system furthered the purposes of the f l a say these are all the same jury questions are questions test for the fifty percent rule with three factors the frequency of how often the guarantee is provided the extent to which the guarantee exceeds earned commissions and where available seeks to base compliance on industry custom which has been repeatedly rejected including by the supreme court in parenting versus arkansas best freight the district court found that the karen to minimum pay a small in applying this test but it only considered the minimum pay to be the amount above commissions that's different than the way it was done in keys versus opposite of what gordon recently did in the case cited by the defense which found that all minimum pay was considered to be unliked commission and it all it's also based on comparison to sixteen to seventeen percent of sales apparently and we've shown that sales pay as a percentage of sales dips as low as nine percent so even though this is an improper test we also believe that the district court in properly applied that test and for additional one additional reason also said the minimum payers provided a small percentage of the time well the pay records itself which the district court obviously did look at in making that conclusion show that minimum pay is paid to about one out of every six technicians each week if that's the math is carried out that's about seven hundred and fifty dollars times a year i cite a case from northern district of iowa both akio versus tyson foods two thousand and eleven u s district aggregate it's sizable one of you know giving minimum paid to one out of six automotive technicians every week turns out to be a sizable amount  it's much easier to meet the requirements of that test all the employer has to see show is absence of overt sham and i cannot see because i lost in this case he actually commissions are not proportional now as counsel is admitted this is not an argument he raised to the district court and in fact is response shows why  district court arguments need to be made to the district court in this particular case we've been prejudiced because you haven't seen the record below is not developed and there is an explanation a very simple explanation for why component that determines technician pay is their hourly production scale and the word hourly there is a bit of red herring that district court pointed out that context is important in all these cases these cases what it's really about is sales production each sale to a customer excluding tire sales bees and l p s gee revenue is credited to the salesman and that salesman will technicians hours are measured and then at the end of the week you can determine their hourly sales production which then goes into the scale which gives you an hourly rate for that technician which is based soley on their sales production for those matters and this the only way the technician earns more is by producing more if the technician works but doesn't produce more the pay is unaffected and we have some examples in our brief showing the well i think how he explained that is an hourly rate is as its use in the context of the statutes an hourly pay plan is one dollar where the sum is stipulated in advance between the employee and the employer in other words an employee says the employer says i'm going to pay you fifteen dollars an hour to do this work and the employer play shows up he knows that he works an eight hour day that's one hundred and twenty dollars in his pocket what i'm trying to ask you to do is address under the summary judgment standard the fact that so many documents seem to be phrased in terms of calculating hourly rates in i think the what the district court address data set it was  context is important any any term can be expressed as an hourly rate in this case bracks is chose to express it the pay plan in terms of an hourly rate as essential a way to attract technicians as it was their experience that technicians had a better understanding or experience of hourly pay compared to straight percentages so i think what's important though and what the case really suggests you need to do is get under the hood and see no pun intended and see how exactly he paid and is driven what puts the money in the pocket of the technicians in this case it's not an agreement between the employer and employee that they're going to make a certain stipulated sum of money per hour it's an agreement that their pay will be based upon their sales production how much they produce in sales  vacuuming day and that is converted to an hourly rate any pay system where hours are recorded and hours have to be recorded here for purposes of compliance with the f l a say that pay plan is can be expressed in hourly fashion well what really sets this is a commission is the fact that the technicians are receiving their fifteen to seventeen percent of whatever their sales are now that does exclude tire sales which is the next thing i want to get to the other three components here including higher sales revenue and bonuses for of their sales production and so in this case praxis pay plan is five dollars per unit from one dollar to seven dollars units eight dollars and seventy six units and above now this can really scramble the numbers because the number that the plaintiff is using to claim that's our pay plan is not proportional now again this is an argument that wasn't made below so you know we didn't have a chance to argue this in the district court but  is doing is arguing the application of the pay plan isn't isn't consistent where in fact it is not as it's all sales production is compensated based on the production how that's how we account for that discrepancy is really driven by the tire sales and p s g revenue and other factors that aren't considered sales production for purposes scale  now ultimately as i've said the fundamental driving force here behind a pay plan is sales production which is what makes this a bonafide commission plan we have a set percentage based on the scale  sales that is going into the technicians pocket and we also have a system where the technician doesn't earn more by having more hours work but rather earns more by having more in sales production and i think under the effectors in ye that is is really what makes this a commission plant and the fact that it's expresses an hourly rate in certain certain areas in the marketing materials that the plaintiff relies on i point out also that those marketing materials also say that compensation is going to be based on sales production compensations system is going to reward the top producers and that's really the intent of this pay plan is to identify the best technicians and pay them more than technicians and it's aren't as as efficient and that's a benefit to both brock's as a company of course because it means they can see perform more repairs and it's a benefit to these technicians because they'll get paid more  now the case talks about the coupling pay from hours worked and in this case how that how that works is essentially we take the sales production and they divide it by hour simply for the purpose of the scale it's not the hourly mathematical equation doesn't impact the ultimate compensation to the technician it's simply a matter of a way of expressing it to the technician so they can see that the more they produce their hourly rate of pay is going to increase but that doesn't mean they're being paid hourly th still being paid on a commission basis consistent with section two a seven  half times in age section to a seven i directly states a guarantee is our permissible the last sentence of to a sudden i says in determining the proportion of compensation representing commissions all earnings resulting from the the regular rate of pay to be more than one dollar to one dollar half times the political minimum wage but in practice we see that it in fact is something that technicians are you can have reconciliation or you can not have reconciliation i point out that for if we consider the purposes of the f l s say if one of the purposes of the f l s say is to benefit the workers in this case not having reconciliation is a benefit to the workers if you have a reconciliation years essentially taking money out of the workers pocket which in this case bracks does not do they pay their guarantee and then if the worker doesn't make  that doesn't meet the minimum for that particular week the worker receives a guarantee the following week the technician does exceed the guaranteed brock's is not going to take that money back and this is something that is permitted by the pla accelerate plus an additional amount of commissions if you amount of commission payments exceeds the total amount of salary payments for the representative period now we don't believe that the guarantee qualifies as salary but what that shows is that the in this case seven and a half percent of his total pay another thing too that i think is worth pointing out is that the rx his compensation system is designed to encourage technicians to work faster to work more efficiently  so they can produce more in earn more for themselves as well as earn more for racks now if you look at the pay records in this case it shows that during the beginning of their employment write received the guarantee much more often than they did towards the end of their employer with brock's this is an instance sensually that they're becoming better workers more efficient workers as their time with br s increased and thus they were being paid more and had more money in their pockets after through the course their system we think the pay plan is one dollar of the reasons for that  the pay records in this case show significant variation in the compensation the technicians were receiving both as a total amounts as well as on a per hour basis  the nd situation involves a regular payment constituting nearly the employee's entire earnings expressed in terms of percentage of sale with only a slight addition based upon greatly reduced percentage applied to sales about the quota this case we don't have a as the technicians receive the same percentage amounts for each sale they made and in terms of the sales production so they want to  specifically noted that there was no guarantee in that case is one of the factors to consider whereas in this case we are guaranteeing that we are going to comply with the statute by  guaranteeing wanted to have minimum wage in that case the firy of the commission was essentially develops as after the lawsuit was filed there was not something that the company had considered or made a factor in applies to virtually every case cited by both parties in this case the keys case specifically notes that they're reading the statute under a narrow construction in two thousand nine hundred dollars course the supreme court and see no motor and in this situation and the two main driving things behind that decision more that the commission was a pretty based on a proportion of sales in this case we have the the production and the scale that rex uses to compensate its technicians starting in that fifteen to seventeen percent range if you do the math you can see it's consistent throughout the scale so we have that factor it's based on percentage of sales and then we have the tire sales which are based on five dollars per unit l p s g five percent of revenue the tire sales and l p s the revenue end up being a small fraction of the overall compensation it's  the biggest driving factor is sales production on and things like break shots and transmissions and and things of that nature and of course the nd major factor in use of the idea that pay is d by increasing your sales production and given that that is the case here we think the pay plan clearly complies with section seven i and that summary judgment was properly granted how much impact tires had on the total and the commission percentages there is just only councils assertion there but you know just to look at this mathematically it just show differences ranging wildly from nine percent to sixty five percent the impact of the tires has to be substantial and it has to be in both directions both dragon that the commission percentage if you want to if it could be not other factors and they think that do that as to saying that an hourly rate has to be stipulated bands well there's no legal support for that position and a variable hourly rate production over the week and one works an extra two hours per day what effect does that have on there are other men if they qualify for the commission they're going to be the same but you know what they're assuming is that pay doesn't depend on hours well if you keep up the same pace over another ten hours you're going to be making a lot more so ours do matter our also matter whatever you don't get the commission if you don't get the commission you're looking at minimum pay and that's just incentivizes working more hours but either way minimum wage reconciliation and actually leaves the employees worse off which it does a question that you've answered that yes i believe it if it does it takes money away from them when they're doing