it please the court chidi henderson for the appellant jones this is a case about the plain language of laws that are designed to it protect employees and that employers must comply with before they're relieved of the obligation to pay overtime for work over eight hours in a day there's agreement here on all the facts or is just disagreement on what the plain language of the law means here there is great latitude provided to employers to define what's called the work unit for an alternative work week schedule program they can define it by location or not they can define it by region by occupation there's a wide variety of ways that the employer can choose to define it but once work unit is defined the employer must conduct an election and the employees that vote in it must be members of that work unit the work unit here was defined by the employer to be the pharmacy manager at the elko home store when the election was held this defendant admits that the that mr jones was not statue say that the person has to be in the union at the time  mark schedule the way we look we're looking at wage order for and section five eleven and they're both consistent i believe wage order for parents the language of section five eleven employees must be affecting employees in the work unit and that's what it says and that when he was in the working unit he was in effect an employee and he was and other words depending whether you're looking forward or back right at the time the thing went into effect he was affected he was in the working no he was not in the work unit here are in this say in this present tense in not going to be and all of their briefs say that he was going to be assigned that they had offered in the position that he would be working in that position but there's no dispute here that at the time of the election he was not the pharmacy manager at the oklahoma store therefore he was offered the position and he was offered the position and accepted the position the same day that they told him that he would be voting election and that they might give him the position on a temporary basis and fourteen days later he was asked to vote on whether or not to accept this schedule without overtime pay and again they had confirmed that he had been transferred because he had been transferred and then he was transferred to me again working without overtime pay and this was after he had sued them and said that they weren't complying with alternative workweek schedule procedures and imagine it like this if he had been offered the position had been transferred or was now working out the alcohol in store they had then conducted the election and he had voted no and then they transferred him back we then have an adverse employment action but it didn't happen that didn't happen because they didn't transfer him until he had agreed and that is in no direct violation of the way george well they made a commitment to transfer and he had accepted it imagine the certainly he would have had i claim had thing to on this of retaliation for rights he would have and then that happened he would have then had the burden of showing that there are reasons for my withdrawing the offer was not allowed to do what you say they could have done they couldn't have done it it would have been illegal to do it they're not allowed to conduct an election with employees that aren't will it also specify is that the election must be held at the work site of the affected employee there's no doubt that work site here was in a completely different location than elka home but at the same time when the employer defined the position by location that meant that work unit was in the home so if you define the work unit by location then the work site has to be at that same location at the same time and he can't be two places at once and the reason that these requirements are here is to avoid just the kind of possible the problem for employees that we face here it's a single employee working on it they're going to know how he voted they offered him a position that he really wants because it's two hours closer to his house and they say this is a twelve hour store all the people that work here work twelve hour shifts it's your decision whether or not you take it but we're going to make you vote in this election on whether or not you agree to work without overtime pay before we transfer you that's what happened here and these wage orders are to be strictly construed in favor of the employee not in favor of the employer strictly construed means just what it says the plain language says in the working on it the work unit was defined as in elko home he wasn't in alcohol therefore he wasn't in the work unit and there's a very different set of facts a very different kind of lawsuit at least from a plaintiff's attorneys point of view between somebody that was offered a job and then actually that offer was withdrawn before they started working first as somebody that was offered a job and fired one's wrongful termination one didn't exist at all and trying to understand the coersion theory that you have here a little bit better because i guess maybe i'm a little naive but i looked at this as the employer offering him your client rather the option to accept this alternative work schedule it's like it's your choice we you've accepted the transfer or we're going to send you to this other story as you want your choice take it took it this way or take it that way and luckily you're the only person who has to vote there's no other employees in the in the work unit so we're i guess i'm just at a loss to see where's the co is afraid that he voted no the transfer wouldn't occur but he had already it has already been approved and he had accepted it yet and there's nothing that prevents an employer that says hey we're going to transfer you from coming up and saying hey we're not going to transfer surface rights sure that might be a retaliation claim but that's a very different prospect when employees in the position of dealing with the corporation and the corporation says we're going to transfer you but first tell us if you're going to work without overtime or not that's what  fine you like it like that then you're going to stay stay right here we're not sending the transferred out we have a more senior pharmacist and we're going to put him there there's a very difference so that if you know the difference there's no there's no other explanation for why the transfer that had already been approved and had already been accepted why that's been rescinded other than your vote in this oh there's all kinds of pretext that's what plaintiff's attorneys in employment law to with every day we didn't fire him because he alleged sexual harassment we fired him because of x y or z the reason that these requirements are to be strictly construed in favor of protecting the employee is to make sure that there's absolutely no risk that employees are forced into working overtime when they don't accept that schedule this employee had already said you're not following the a w l s rules properly and was suing them and then they say if you want to move closer to your house tell us if you're going to work overtime without pay or not that's what happens here and i need to be less election is they asked before they transferred him if he would agree to work without overtime pay and there was no guarantee the transfer would go through in fact the supplemental excerpts of record show that it was a temporary transfer there's and it's difficult to put an employee in that position where he has to allege that oh the reason they didn't transfer me was a pretext they actually did it because i voted no versus just making the employer comply with the plain language of the statute which says in the work in it the issue here is not was the gun to be transferred the issue here is not does it seem like this isn't that big a deal although it certainly actually is the issue here is was he in the work unit when he voted and that is a time requirement because at the time you cast the ballot you have to be in the work unit not gunna be in the work unit and this employer admits that he was not but says it's not that big a deal this same employer by the way repealed  and they say that's ok we don't have to cause you alleged it was on lawful but they haven't paid him any overtime for the of us hours he did work and they still insist that the eight of us schedule is valid despite the fact he was not in the work unit when he voted and at the same time they say we can end it without complying with the very clear law on how you end in a ws are you saying that in order to be in effect in the work unit he must have actually and working in that work unit i believe it depends on how the employer defines the work unit there's a wide latitude in how to do it i can't think of a situation where that wouldn't be the case but it is possible i suppose the employer could have defined it by pharmacists in the work unit pharmacists all pharmacists that work for albertsons for an a w l s and you're an employee and we've already told you that you're working for us and your waiting for your pharmaceutical license you cook you probably could vote in that election and then when you become a pharmacist you're working the eight of us because you weren't affected employee you were in the work unit you were just waiting on your certification i don't know if that would be ok or not but i know that's not the case here what's the difference the difference here is that he wasn't in elko home he hadn't been working in alcohol and he just knew it was closer to his house and they had him vote while he was not a pharmacy manager at the store and the very sad specter of coersion is enough to suggest that the industrial welfare commission had good reasons for imposing this requires as an employer that the fall is supposed to be before the performance of work right that's correct you right so why it's the same question just dealing with it but if it's supposed to be before the performance of work what difference does it make whether it's for the performance of work and he says same location before the performance of workers or different location t arise no no that means it's before the work shift begins it doesn't mean before you begin working for that employer or your in that work unit by the employer and it's it's to make sure that the employer doesn't force everybody into a room to week schedule well ok that's great imagine why that is before the performance of work ok you don't put somebody on an eight of us schedule and then have them vote on it you also don't badly so here before they had a marked his schedule th let him vote on it they let him vote on it but he wasn't in the work in the end i put described a bunch of different ways why that's important if you're going to define it by physical location do you want to reserve any time i do your honor and you should thank you i'd like to reserve for the remainder of my time albertson's finds is the most confusing case it thought it was doing the right thing was trying to do the right thing the man wanted to switch to alcohol they said back in this well again with a different complain was exactly what it was never clear to us what it was it was very vague it had something to do with alternative work schedules it didn't have to anything to do with what's at stake here this is a case that changed over time so we couldn't figure out when the first complaint was filed before this issue came up what mr jones was unhappy about or what the issue was and then it morphed into this case where he became suggested by the court which is if we had him vote and they were unhappy with him because of his vote and then revoked the offer to transfer him there i think he would have a claim against us  were in the union and he voted and he was the only person and he voted a certain way you could still have the same problem you could transfer it out because you your men i'm sorry because what if you were and if you were already out and the day he that we told him he could go there before he voted so it was clear there wasn't any well let's see what your vote is then we'll tell you what's going to happen about your transfer we said you can transfer and we also said to him a supervisor said vote for the aid of us if you want ever get to the fact that the the offer to transfer was temporary i don't think so i frankly don't recall the offer being temporary but that's possible i don't think it's ever been raised in the any of the briefs that the offer was temporary here i thought i thought that's what the offer going to make you do something you don't want to do you don't want to do the a w l s fine you don't have to do the eight of us we've been trying to coerce him to do anything or make him do anything we just offered this is an option he took it when he became unhappy with it and he said fine you don't have to do it anymore it is the still point yes at which location i think it alcohol but he's not doing the eight of us scheduling right but we thought we were trying to do the right thing at all times he wants to transfer fine you want a ws vote you get whatever you want he gets there after four months he says man i don't like to say to us they said ok you don't like you're not going to make you do something you don't want to d i'm not sure what else we really supposed to do here seems to me we were is fair and reasonable as we possibly could be here so we've been as i say we've always been perplexed by what the real complaint is except that it seems really to be an attempt to get away with a windfall to generate a piece of litigation and get some money when there's really no case here i'd be happy to answer any of the court's other questions but i don't want to take up the court's time to offer a job and have a job and and accept that it's just what you're saying it's not it's not the same thing it's not the same thing improving in the court of law it's not the same thing at all once you make a transfer and you begin to work there and then you adverse employment action according to california law and you don't think like what are the damages there are no damages that we had to transfer and then we rescinded it and that's not the same at all he wants to be transferred once a transfer is occurred that is a very different specter and the reason that these laws are interpreted strictly just to avoid that kind of feeling for an employee i understand that everybody is focusing on what the defend what the plaintiff did here but why didn't they just wait until he was actually in the work unit to conduct the election well we're alleging is because he's reporting on an eight hour schedule you would then are required to have a meeting to make sure that you go over this with the employee you were then required of a fourteen day waiting period you're then required to have the election and then you can't make the employer begin to work that schedule for another thirty days and that's why those protections are in there is to avoid this kind of situation they also haven't explained how if this is about a ws and again california law is very clear that these are strictly construed and in the work you know means just what it says is and your time is up