the burden shifting framework stated in mount clemens and nd that the trial judge erred in not advancing the cap on penalty damages for failure to provide wage notices put an employee use a collection of his hours of work in wages paid with specific evidence that has not been done here what was done and what the court relayed certain instructions to the employees however that is not sufficient under mt clemens for the reasons we stated in our brief and also for reasons that were stated in  essentially shielding the employer from either actually constructed knowledge of the employee's hours of work for you the question of lunches and things of that sort courts can be forgetful but when they're dealing with exactly the same types of claims either way it's kind of bizarre to think but i hope you will say something in defense of that whether now or in i'm not sure i understand the question of the relates to rule nineteen as it relates to one hundred and ninety one but i'm happy to answer the question as it relates to mount clemens essential for arguing that while the court correctly applied the standard ruling that breaks and the other time was compensable working time it did not correctly apply the standard even though it was aware of it in there was a rebuttal of the allegation that the plaintiff worked on the jewish holidays and for the last two hours of their working day each day judge calibrated i don't know if you want to the magistrate's finding with regard to the fact that the fellows only work in a clock you say is premised on a conclusion that that's what the fellow was instructed to do is that as opposed to that mr might tell us to puncture we refer to as tom that workers should stop working at around eight o'clock however the restaurant remained open until ten and workers did not leave the restaurant way tom's knowledge as to when he was making employees work is cuticle to the employer it's not the employer's instructions to his manager that is that determines the employer rest of the day i might share your skepticism on that point but the standard here has to be clearer or and clearer could be an error of law to use say the year of laws is the you can help when you get come back my recollection is that the finding is that they were instructed not to work past eight o'clock there was not a finding that anyone ha could say that they did not work after eight o'clock no one testified and with regard to st hand knowledge of that day in fact each of the schism each of the employer's witnesses testified that they did not when the employees stops working that's what my recollection is so your point is is that under the under the burden shifting basis because they didn't keep written records because the employer did not keep evidence to meet that burden and then it's up to the employer to be but that and you saying the employer never truly rebutting that because all he testified to was what he told the manager to do but there was no testimony as to whether that  some applying it retroactively some not that's really a state law issue and a reason why we shouldn't just certify that to the new york state court of appeals and ask them to tell us what is the proper way to deal with people like your client who sort of started work in one period and continued working through another yes your honor the cases on point in the district and this time then i'll go to the other other issues as well in the in the is going to go into the issue but the calculation of the overtime damages believe that the that the court below erred in two respects the the the schedule of the employees where they had a set schedule every day from sunday to thursday they worked from the judge ruled that that they were paid they were paid for the st forty hours and they were paid nothing for the last eight hours forty eight hours of work that week they paid for the st forty and they were not paid the employees and divided it by forty instead of dividing it by forty eight dollars so this is two consequence of what happened one is that the hourly rate was a much higher rate and also they were they were is pretty steady week after week you have to you have to divide the weekly weekly salary by all the hours and consider that they that they get paid for the hours that's what number one would lose a certification that was all the customers orthodox jews wouldn't go to the restaurant and even the judge herself she she wrote in her opinion that the that these claims that they were actually working on the jewish holidays and actually it was was incredible those unbelievable and it just doesn't make any   damages nevertheless it makes sense to to not know what damages and situation were where someone tries to pull a fast one on the court was there should be devalued back one or the other but in your own argument you said the plaintiffs were most forty hours and if that is so haven't you conceded that the figure should be forty so that's my  you know maybe you're saying that on one side it was perjury and the other side was just puffery but aren't we really in the very difficult situation to nd guess  the the court the rd thing was an argument that i thought you would make but since i'm not sure you really made it in the briefs i'm not going to raise it for you i thought it was a very strong argument you might get made but i don't think you'll make  employees work a very set schedule it's absurd to say that that the pay would cover forty hours and is your effort next and hours it's clear that the the prison would work for extra hours overtime next week six hours of overtime next week no overtime so if you switch from week to week week a different schedule so it makes sense to say that you got paid for the st forty hours nothing matter of law that the judge erred in accepting part of their testimony and accepting part of your client's testimony when your client's testimony came up short else where i don't know why you continue to harp on did your client records their hours as is required to do under new york law did he give them a wage notice at the beginning their employment is required to do and did it get him on did he get them scuse me did he give them a notice had he done all those things you wouldn't have these problems but that but part of the problem for your clients in this case is they kept no records no let me ask you this what was the testimony with regard to the hours that they  were monday through thursday you say they worked for eleven a was there any testimony from any individual that actually was present with them between the hours of eight and ten from monday to thursday that to say that they did not work those during between eight and ten made for the new york law and contrary specifically doesn't raise one hundred and ninety one so my question is have you been raised that point which you're now just mentioning at the last minute  remedies and could only apply something that is civic in another section of labor and there's nothing specific in the other sections labor look like one might be one that says that the that you can get paid more than minimum wage i believe that's covered in that opinion three minutes of rebuttal thank you your honor i'd like to since the defense counsel didn't address any of the points that i made an argument that like to rebut the points that were st raised by him and his two sons who at various times acted as managers of the front sales counter of the restaurant each of them testified that they did not observe plaintiff during their work and they had no knowledge of what they were actually doing between eight and ten furthermore scuse me quote set schedule that defense counsel was talking about was hours far as the calculation of their regular rates based on the st forty hours the authority for that comes from wage order promulgated under the new york labor law that the twelve and y c are our section one  three five which directs courts applying the new york labor law to could you could you give me that again please twelve title twelve n y c r r that's new york code yeah  pointed out a jury or a judge sitting a fact finder would be entitled to believe certain portions of testimony would be entitled to disbelieve certain portions of testimony your disbelief of certain portions of testimony is not dispositive of perjury there needs to be a finding of a fraud upon the court which that wasn't here me that analysis was actually done on the defendant's motion to amend or alter the judgment and also here scuse me i just want to be clear that the testimony was that tom who was chinese and not orthodox jewish who was the former owner who had access to the restaurant and who remained the head chef brought chinese kitchen workers who work directly under