oh yea oh yea oh yea all persons having any manner or form of business before the honorable united states court of appeals for the fourth circuit are in manas to draw nigh and get their attention for the court is now sitting god save the united states and this honorable court good morning may it please the court chief judge my name is joseph amos and i represent fire and safety and vest again consulting services l l c and christopher heris its owner i will refer to them collectively as firearm safety unless otherwise necessary my clients were the defendants and the district court and or the appellate before this honorable court this case originates from the northern district of west virginia where the district court was confronted with competing motions for summary judgment in regard to whether fire and safety appropriately paid its safety consultant its overtime under  circuits and has your honor and it is none of it in your favor well i would do so with that respectful tell me how so well the second circuit in the adams corner actually remained the issue of whether a said if you if you work over sixty hours or so you know you got this rate but if you work under what down one hour let's say they fit the mandan the rate you got was like levon dollars of six or seven senate which of course it didn't need it because a case in which house parents were sixty hours in a week and it was made up of twenty hours of overtime they were paying a time and a half for those twenty hours that's right they got them up receive more money yes but they said that's not right because if you did time and a half when the forty above it would be fifteen dollars an hour no they would have made it would have made more money in the adam's case i'm certain they would have made less money in the adage that ship would be is the same case roger and i and i'm sorry i let me let me clear and efficient a problem with it so how does it help you the court the court respectfully remanded the case back but if you figure in the hourly wage based on the fifty nine determine because the difference here is is a blatant rate is same as a regular rate and this is thing as a regular rate because you're not paying in a minute thing more because when you did when you take the hour down is only eleven dollars in six to seven if it was over time it would be fifteen dollars that's the problem is in your case is that is the question is is the blynde it rate actually a regular rate yes and that is the main issue before this court so how does the second case help you well the second circuit case it was remanded it said that there are no irregularities as found in a celta and we are going to send the case back to the district court to find one whether there was an be getting more but they don't that's not the stand well the standard in which the department of labor science is and it's in actual fact you don't have to only look at the agreement what we are arguing is it's a combination of but the reason is you don't want employees to go  regular rate when they started the agreement for hitch rate these consultants were actually under the traditional method of the regular rate what is the regular rate yes it's what they make for not overtime work which is in this instance give for the forty and then you take that regel rate in due time i have everything over it that's the traditional way of doing what you've done is it and i and i and i i get it i think it allows it if in fact you did let's say have ten dollars an hour for the first forty and then you have fifteen dollars for the next twenty and you take that and say well we don't pay you a south seven hundred dollars i think that's permitted that's because you but didn't abide the regular rate it being ten dollars an hour but if you concluded prior to going on this hit trait the consultant were sat down by the owner of the company and told here's what you're straight time write it here's what you're overtime rated here's what your full which amount is and ninety percent of the time these consultants world exactly their hit train and what the department of labor wants to do is upset the entire agreement throw it out the window for these ten per for that ten percent they did not work for him in that ten percent where they made more money and one cent to stick that i think is very important for this court to know of is that the district court basically latches on to the fact well you got paid the blended rein when you worked less then forty is the actual rate of pet ok for not over time work well bay ridge also says the regular rate has to be computed once you back out all over time premiums which the employer has given the employe and so if they had an agreement that you were going to get pay in the district court found that they didn't come out and say there's an agreement but they did in their decision on page twelve seventy six  safety offer evidence that they complied with seven seven eight three zero nine by paying consultants a fixed rate that included straight time and overtime pay they went on to say that mr harris the owner of the company sat him now and told here's what straight time pay is here's what you're hitched her here's what your overtime rate is and here's what's your hatred and that only happened ninety per ninety percent of the time they worked exactly the hitch there's twenty four consultants in this case twenty four out of the seventy one that actually worked exactly eighty four hours every single time and they stand to benefit to get overtime compensation that nobody nobody ever working for they actually worked eighty four every single week and so what the department of labor wants to do in this case is to focus in on a very small amount of tops in fact sixty out of twelve hundred and  four times that they worked less than forty hours and got paid that blended rate which actually over compensated the employees and they want to throw out the entire scheme not for just the employees that worked less and then it got laid where you raise case the same as the regular rate radius ok that blended race is just for bookkeeping purposes for them to take one eighty fourth of a week if they do not work a full hit it simplifies the math rightly for the employer from the employer and it overpays the employee and so it should be no reason to disrupt that the regular rate is what is what built the agreement ok these consultants again were told here's what your regular rate is here's what your overtime rate is here's what your that would be permissible you could say we're going to pay you ten dollars for the forty hours and then we'll pay you fifteen dollars for the per hour for the forty four hours i think that might be permissible and i'll ask the other side of the truth as this is confusing but show that was not the case i mean in theory an employer that is what employers supposed to do but that is not what this employer in fact did the actual facts here show that this employer paid the exact same hourly rate for every hour of work on overtime under forty and overtime up to eighty four per week exact same hour every hour of work and that's what the actual facts show and it's not just ten percent of the workers this was one scheme the ploy or fire in safety hired all of these employees under the exact same pay agreement they did the exact same thing as their job duties and it pay it paid them the same way when they worked less than the full hitch schedule that from the base of where they pay you know if they worked let's say forty eight hours in a week are you talking them down from eighty four you building up to forty eight it's it mathematically is the same in the a it reflects that they are only benefiting if you buy their print fire and safety is premised that over time was was kind of baked in to the fixed pitch rate and therefore the blended rate that premise is a fiction it's component in the numbers we've got a blended rate now what we do is we pay this amount out and you say everybody gets the same amount but they're saying it's embedded there's a regular rate and it's already what it is in a sense people perhaps get calculated in a blended rate that counts for overtime and when you put it together on a fixed rate regular rate and what they get even though it seems to be the same it's already built and sold the same this my get paid the same thing in the end of the day but there i think their position is but wait a minute but everyone is getting the overtime yes people most of those people in the people who most of them did what they shouldn't get but everybody is covered now he m true if in fact the facts tench included the overtime but to determine that you an agreement might be relevant but you always look to the actual facts and those trump any agreement and the actual facts are show that even when an employee worked less than forty hours they were paid the exact same hourly rate as the employee who worked eighty four hours and basically you're saying they didn't work overtime but they were paid court guidance that the regular rate is always the actual fact and so what they were paid when they didn't work overtime that's very obvious they were paid that much per hour and then they were paid the exact same per hour when they worked overtime and another kind of way of looking at this is that when an employee works less then then forty hours a week if you find their argument that that included overtime or let's say an employee worked forty eight hours a week is likely more than than forty if you buy the argument that that included over time when you do the math and you back into it that over time great that they would be getting for those eight hours is literally three point eight percent i'm sorry three and a half three point eight times their regular rate why would an employer pay that much more when an employee works forty eight hours what then when they work eighty four hours when they if you buy the argument they're just getting the the requisite time and a half from me it defies logic it it's rewarding the employee for working less by basically in their view paying them more per hour it it's it completely defies logic and it defies supreme court precedent which is you don't look at is that is that the real problem that the records are not kept to make sure that each person gets their regular rate and then over time out above forty the problem no matter what the consequences or there's a windfall to the employee or not is that your position no it doesn't mean it is there is out there are record keeping violations here but that is not what triggers their liability here liability is triggered by the fact that for whatever reason administrative fees for them for themselves they decided to paint employees the exact same hourly rate for every hour of work and they didn't include the overtime premium i know think they might have they may live legitimately have felt they were including the overtime premium but the fact of the matter is they didn't calculate it and then the f o c is quite clear congress prescribes that you pay overtime at one and one half times the regular rate you have to earn more in your overtime hours than you do when you're not  forty times ten and fifteen times twenty call it the rate of everybody gets that every week or every two weeks is that evolution if they're not working those hours it actually is everybody is covered and i will give everybody that you can pay over time at a higher rate than you're required but you make it but you can't pay a fixed sum for a variable hours and that's the problem in the hypothetical you posed where's there a system that requires additional pay per hour and i mean this is my personal impression of why that would be a problem i know it seems counterintuitive but basically job but employers have come up with all sorts of pain schemes to we're just going to pay you a fixed sum you're going to work sixty hours it doesn't matter how many you know sometimes you work forty and when you come up with a scheme like this war at least a different way of going to save you don't give you a lump sum does a reason they do it and it may well be that the hourly rate that they normally would pay could be ten dollars an hour and fifteen for that over but they said we don't want to pay ten dollars an hour for the first forty and fifteen over we'll give a bleed so we'll pay twelve dollars for the whole time period and that keeps them from have to pay the fifteen over the forty even though it hours a week and they know they are supposed to get one thousand dollars an hour at any time they work over it doesn't matter if they think oh well really the twelve are supposed to you know pay me compensate me for when i do work overtime but i thought th except for when they're working less well yes excuse me the example that you're both discussing is discussed in the rank the sex of the subsequent regulation is seven seventy three ten it was specifically addresses when an employer attempts to sum for variable hours it's it's not permissible because it is it permits an employer basically to back into the math and claim that whatever they've negotiated you know whatever they've agreed to with their employees is going to be permissible and it basically kind of permits retroactive bookkeeping to show compliance with the i phone let's say and that's that's directly contrary to the whole purpose of those overtime provision which is to make sure employees are paid a premium for their overtime hours and to put pressure on the employer to spread employment that was one of the original purpose because otherwise the employer could just make up whatever it wanted at any time after the fa exactly and that's exactly that and i'd not be this employer but somewhere down the line wait wait they can't just do whatever they want exactly and i really don't think that was the intent of this employer but a ruling that says th employers pay scheme is acceptable would in fact allow employers to after the fact just of you know back into the math to show compliance when in fact they were not paying the overtime premium for the overtime hours worked although it's the math that shows that they were in fact paid that the time they were just on the half because the hit rate the blended rate paid them the regular rate for those eighty eight hours so really they're only you know that overtime premium of a half time and that's what the back wage calculations were based on here so it's it's a little less severe than and i think your honour's imagining employee who regularly works a fixed number of hours a fixed amount for those hours regularly work and that is exactly what happened in about ninety percent of the cases of the time here  all of these cases from a sell through the line of their cases that site itself all have a detailed examination of the actual wage agreement and i believe that some of the utmost importance in this case fire and safety originally employed consultants under the traditional method they paid them straight time for forty in time and a half for anything over forty but as their business grew their clients required them to work consistent twelve hour shifts and what fire and safety did was the consultant that worse that were subject to those types of clients they switched them to a blended or switched them to a hitch rate the fixed amount they use their regular rate and their overtime rate prior to the to the transition to figure their hitch him out and not only that but some of the in fact eleven consultants in the year of two thousand and fifteen in the middle of this investigation period always stayed our under traditional method because they didn't work overtime consistently i mean fire safety and i believe the deal well is possibly a brain with those and and we can see this but they never intended to violate the act and in fact they use the regular rates that are at issue here in this case to build this agreement and this agreement was executed exactly as intended ninety percent and the court latches on to sixty work weeks out of over twelve hundred to say were you pay less then repay the head trainer for less than forty hours you gotta throw the baby out with the bathwater you've got to throw all seventy one agreement out with with just new sixty work weeks overtime where they compensated at the same rate as those who did know they were paid a regular at their regular re and any if they ever did work overtime and they're paid time and a half they were under the traditional schedule in the traditional method of the fair labor standards act so i think it's important for the corps to understand that only about eighty percent or ninety percent of the consultants did move to hit training but there is still a large number of consultants eleven in two thousand and fifteen that continue to be paid the traditional method those up the they're not they're not part of the damages here but i believe the court needs to be made aware that that fire and safety always intended to well not the people who employed security personnel they were always pay under the traditional megawatt because they didn't work a regular fixed number of overtime hours if i did why did you do this right this why did you choose to do this  seven not be due seven hundred dollars for his work week why can't you just cut him a check for seven hundred dollars so so you're saying it is the same plea i'm saying you can when they do work their full work week you do have to make it a duchess so you decided to make you is it really that much difficult to calculate how much you make for forty hours and in time and a half over in this day and age well you would have to change the pay in the actual structure of the paychecks i mean companies do it all around stress enough that the the agreement the three zero nine agreement was executed exactly as intended ninety percent of the time and i one last thing i would like to touch on is chief judge gregory you asked what's the evidence is and for those individuals that always worked a hitch they got exactly what they bargained for and to go back and to reformulate a regular rate that nobody agreed to is going to be a massive windfall for these employees at the benefit or at the burning the company and again twenty four of these consultants are going to if these cases a firm are going to get damages and they always worked eighty four hours exactly as they agreed to two of those consultants which provided affidavits that they agreed to work exactly eighty four hours we would ask that the district i'm sorry that this court reversed the district court's decision and enter judgment