thirteen be over time exemption case brought by caerleon brown former highly compensated employees the primary issue that i would like to address today is the court's denial of the j m a well in the legal insufficiency of the evidence to support the jury's verdict this case also involves a number of legal errors that arise out of the interpretation and application of the technical corrections at that he ca and in light of the supreme court's decision yesterday afternoon and yet another going to say was in the ass to be ready nothing like getting in letter the afternoon before the argument but given that it was the same day the decision i think we were pretty promptly tells how that case affects this one if at all so it also was another f l us eight to thirteen b exemption case and it got calling it in c o two because it had been up in front of the court once previously but i think significance to this court and what will change the way that this court i think analyzes the f l s say in the exemption at issue in this case and future cases is that the court spoke extensively on the statutory interpretation and in particular i think the on overarching principle is that the majority rejected the longstanding position that the f l s a should be if it was exemptions should be narrowly construed against the employer and in favor of the employee and  as long as i've been practicing law and i've been doing wage in our law a long time i've never heard of any other way to construe an exemption under the f o ses i think this is really a sea change and that will impact this case because when the district judge tonight the j m a well one of the rejected the notion of interpretation that a remedial statute should be broadly and liberally construed with the question that really what statute is not remedial so the court has been directed by the supreme court to give a fair reading  i think this is actually a coverage provision and i think you go back to the t c it was actually not codified within the statute itself it was added to the notes but i think it is very significant where it was placed it was placed under two hundred seven which is the over time coverage provision it was a placed under to thirteen be as an exception to an exemption it actually is a coverage provision so i think you go back to we are not going to interpret  this broadly or liberally as a remedial statute we're going to give out a fair and plain reading as well as your argument for why the burden is on the point as well that is part of the argument for why the bird is on a plane but that i think that is the most important reasoning behind our argument but the other reason that in c no two is very important in this case is that and i'm sure you noticed this and we're viewing the our police brief that they give a textual analysis of the and even citing of course reading law and use the ordinary meaning principle and then talk about contextual clues and i think that wooden scene who did it is it shows the flaws in that part of the analysis for looking at the tcas and here are a couple of other points out of reading law that are important the supreme court in in the in sr case gave an ordinary meaning to salesman under the other exemption because there was no other explanation or definition given in the two thirteen b exemption at issue that is contrast it with the two thirds with a two thirteen b one exemption an issue here where congress expressly said that the motor carrier act exemption is to apply according to the power of the secretary of transportation to regulate motor vehicles for major carriers i should say under the motor carrier act and expressively referenced the statutory provision of that so there's context here it's not a term kind of floating in isolation within the statute garner and scalia say words are to be understood according to the ordinary everyday meaning unless the context context indicates they bear a technical sense and here we have a term in the t c s i think in the apple is brief it's referred to as they refer to it as a vehicle but the actual language is motor vehicle when the term motor vehicle comes from the motor carrier out and it is technically defined and it is used in a technical sense so departing interpret ing the t cia which again is is only one of the issues in the case that that goes to whether the court the district court properly used rating versus weight to ask you this if we were to conclude that you're correct that the burden of proving that it weighed less than ten thousand pounds is on the point it is there any evidence that it didn't weigh less and that the that these guys operated vehicles that weighed less than ten thousand pounds using your definition  well using using my definition of vehicle a rating no and that is that is the main argument that we make in the case we have a jury verdict here that is not a verdict that was arrived at by weighing conflicting evidence we have a jury verdict that is contrary to all of the evidence the only evidence of g w are introduced in the case was introduced by the company and it was consistent that all of the ford super duty f three fifties that were assigned to and driven by the supervisors in this case was more than ten thousand pounds you could you say the record stands for the the opposite proposition that if you were to win as to bird would there be any evidence in the record if we choose that the weight doesn't mean vehicle weight plus payload is there any evidence that contradicts the title exhibit showing that those were less than ten thousand so if you win as to burden but we conclude the plain language doesn't talk about payload added to vehicle it's just the vehicle right so are you asking that case would they win because they showed that the weight was less and would there be anything you would say would be disputable to go to trial with their material issue  try well i would say i would say that if they were to bear the burden and you adopted their measurement of the problem is that in there is actually a myside in their brief on this they claim that mr crombie testified that the vehicles assigned to the plaintiffs actually weighed less than ten thousand pounds that was not his testimony if you go to that point in the transcript he testified that from the factory it does but there was extensive testimony about the customization of these vehicles that must occur in order for them  but the titles for the vehicles are in the record and they list the manufacture weight of the vehicle they they list the the factory the factory weight and they also list a gross weight but either one of them chokers vehicle weight rat i point my point is is it just is indisputable either way that the gross vehicle weight is eleven thousand they can't contest it but if we say the plain language requires vehicle not plus passenger not plus payload and cargo then you wouldn't dispute it because the title says it was seven thousand six hundred i would say in the record the registration shows that but there's also testimony that these vehicles and this i think they've been less clear on what they would argue the standard would be there's testimony that these vehicles had a significant amount of customization on them and they could have added stuff that would add weight and there was also with that one there was also testimony from brian bessel our about how much those things are the headache wraps the grill guards  would why would congress knows how to put in g v w or elsewhere and they don't here and each number is equally ascertainable no one has better prove his driver's door manual why would we put in payload in cargo  safety way determination as opposed to the actual way because they didn't lead to the t c and was it acted soley to correct or clarify the prior changes that have been made to the motor carrier act in the definition of motor vehicles so congress doesn't need to every time it's amending a statute that is it is well established in clear that you use the grocer vehicle weight rating according to the secretary of transportation standards to determine vehicle weight they don't need to go in don't know what it weighed at the time they drove it you know like stepping on the scale without your shoes ok right we don't know what the stepping on the scale without your shoes weight was because there's no evidence of that so it was their burden then we have a void record and when you have a burden and you fail to put on evidence then that's a reverse and rent down that's basically i'm just making sure that we all understand is correct ok factory so the way that they win is either that they don't have a burden and we can talk about that or they have the burden and it's the factory coming out of the factory and stepping on the scale way correct which is not it which is not a way that the secretary of transportation has ever used or is in the regulations i mean they use they talk about motor vehicles commercialism motor vehicles and the weight is defined and has consistently been used as both for m c a purposes and for motor carrier act exemption purposes as the greater of either the g w r or the g w or when you're combining it with  trailer the combined and what's your position on the amount of difference that we should give to the interpretation well actually i think that's a great question and whether it's skidmore or whether it's chevron in the bulletin i think that i think that the department of labor day deference to conk congress because congress an activity c n a was correcting and clarifying its prior pronouncements in the in c n a the f l s exemption expressly refers you back to the text of the m c a so so really you know i think it should be you should defer to it but i don't even know that it needs that sort of deference because of that the textual analysis that you follow these both issues have divided district courts in recent years is do you know of any other are either of these issues pending in any other circuit at the moment i could not honestly tell you they're not i got at a west law alert this morning from a case in missouri that had just come down so they probably it probably is pending somewhere else and i should look at my own docket before answer that question to you is the harder to issue burden of proof or more weight i think the burden of proof issue is a little harder i think there is a lot of textual history i think think that there's a lot of case law that obviously defers to gross vehicle weight rating but here i think is sort of the this goes to the absurdity principle of interpreting to interpret in text if you were to use there is no question provision you could have a vehicle that has a weight that is less than ten thousand pounds but of people weight rating that is more than ten thousand pounds i mean you're creating there's no harm there's no harmony of interpretation you're picking apart pieces of a consistent statutory text in order to come up with different standards that aren't going to work either from a judicial standpoint or from a compliant standpoint for an it with respect to how we compensated employee exemption there are really only a couple of points and i think the issue on waiver is really a non issue it's a little bit peculiar when we've cited to all of the points in the record i don't think there's any sort of hyper technical requirement that you mention specific words and regulatory definitions in order to preserve the argument we argue duties on me and him and argue duties on directing work of two or more people and then also argue duties on  recommending people for advancement promotion hiring etc with respect to the compensation of these individuals made far more than one hundred dollars one hundred thousand dollars a year each on an annualized basis with respect to the bonuses being included i think the definition of nondiscretionary has been sort of misunderstood or discretionary if a bonus was designed to induce somebody to produce better quality work and that it's in it's by definition  non discretionary bonus that it doesn't matter that someone might have to make that decision and use some subjective analysis in determining whether someone did a good job or did a bad job that doesn't make it somehow discretionary it's still non discretionary  into the side just for a brief moment the legal disputes talk about the sufficiency of the evidence now proceed illegal disputes if there is any time remaining or questions i'll certainly address the highly competent exemption at the end of my presentation with respect to the sufficiency of the evidence even without the legal disputes there's no question that there was sufficient evidence in the record here for the jury to conclude that these vehicles weighed less than ten thousand pounds however that weight is defined now may be evidence that the g b w r was under ten thousand pounds the title and registration records are the most compelling evidence this defendant told the state of texas that these vehicles weigh seven thousand six hundred pounds empty and nine thousand six hundred pounds loaded t capacity maximum capacity gross vehicle weight rating the jury is entitle to believe what chris told the state of texas and he said the nine thousand was a gross vehicle weight rating goes to give a weight rating so he it's a record on appeal three thousand sixty three sixty five three thousand and sixty seven and then three thousand four hundred ninety three through ninety six but it's principally the documents i'm not sure which of those refer  to the documents but these are two documents the title document and the registration document which simply tells the state of texas both the n t with the gross nickel weight rating but certainly that's not the only evidence to i think the second most important piece of evidence i'm sorry those documents will show that g s e w or was less than ten dollars or act ok erect and of the second most important piece of evidence frankly is the evidence that these drivers who drove these these pickup trucks did not comply with the myriad regulatory requirements that are imposed under the transportation statutes for driving these cars so as as one example way more than ten thousand pounds the fact that they don't comply with the regulations for vehicles weighing more than ten thousand pounds doesn't affect the exemption it just might subject them to some kind of regulatory penalty will certain writers there sue inferences right inference number one is seems like a very weird way to decide wait i mean granted i might not want to step on a scale but i don't have to guess what my way to this is once i step on it we know the weight so i realize these are trying to say don't step on a scale but i mean still it  seems like a funny way inferences are what you do with somebody state of mind in this sort of thing but this should be something you can look up and it just strikes me as we're that you are saying well we didn't see the door we you know we don't know about that i mean what did y do in discovery to find out what these things way it just is a weird case to me why we're kind of even wondering what they way i understand the legal question of g v to be our versus factory versus factory plus add ons but once you figure that out why isn't the way what it is well there frankly were some discovery shenanigans in this case it's it's in the record in our briefing but this is business of the door jam of the car in this business of what we called ford and this is what the told happening at the same time so i think that's the answer to the adventure of question but going to the broader question about wid but my it my short answer is taken up with congress you know would have been simpler if congress had kept the old regime and of congress changed the law and eliminated a textual regime that said either gross vehicle weight rating or gross vehicle weight and replaced it with vehicles weighing in and two accounts is pointed out that being a technical definition well that the motor carrier act and transportation statutes generally are extremely technical but they're also extremely explicit there are lots of ways you can specifically define that term and as it was done between two thousand and five and two first of the three legal disputes about the term weight and i should add as as a side point that of course it's not necessary for this court to reach the legal issue of how to properly way if the court affirms the district court in other in other respects but since we're discussing really the maximum rated capacity of that vehicle so on the issues divided district courts do you know of any circuit that presently is considering i don't see i also have a west law alert and so what are you aware of what's the most thorough discussion in any of the district courts in your mind i think it's the idaho decision not to think be mature enough to and that goes to this is not a technical term the plain meaning of way is what the item itself ways without any cargo passengers yeah that's right and the most of idaho decision your honor is spent discussing is spent i don't have garcia and on that question of administrative deference there's just no there's no basis with respect to the deal well it got a lot right on this question it just didn't get this piece right in if you look at the deals guides it just says we're going to continue using gross vehicle weight ratin there's no reasoning there's no justification and you agree that each in theory should be as easily ascertainable as the other each each of the two weights i don't think maybe only one quarter is adopted this customized weight it seems like the big divide is between the safety max weight and the curb or empty weight right at the end that is just as easily ascertainable because the the the measure that would provide that would present the most difficult administrative compliance issues would be gross weight that's literally changes by the day depending on what's in the truck but this unloaded empty weight over four curb away at the interpretation that we're advocating very straightforward thing and that's what the g b w r has right the maximum weight that the truck could hold and be so that's also ascertainable as is this factory way before you add on the steel whatever i think they're equally ascerta but that the ultimate point is you can't just say i mean the courts that have gone their direction on which they've only relied on to just occasions one is deference and the second is well this is just easier this is simpler that and none have said the point that she emphasized today which is well it's been defined as a technical term in the statute and this is just across reference to that to my knowledge no i mean certainly there's there's no support that it's any sort of a cross reference and there's no frankly i don't think much support that you know when congress specifically says gross vehicle weight rating and then changes it to vehicle way that that really means the exact same thing of the language that they struck so no i'm not aware of a court adopting that what the courts have sort of said is well it's just easier to harmonize these two statutory schemes again what we said in our brief that's a lot of old gold but it's just not a permissible one given the language is let me ask you something it's just like the law school hot exam hype and be sure that i'm not missing something forget this case for now let's just say typical case you're the plaintiff you have the burden of proof on point x and you put on zero evidence of point x but you win anyway and it comes to us we would reverse and render yes ok all right your argument is you didn't have the burden of proof but if you did the evidence of weight if we accept the g b w r is this inference thing the imprints about them compliant regulations or what evidence do you have of the g v gave you are being under ten thousand pounds if we find you have the burden and g b to have yours the right way if you find that we have the burden g d g w is the right way it's principally the title of registration documents from switzerland registration documents this is what i don't want to sufficient evidence for the jury to rule it would be in a part of what you're saying it would be confirmed correct right right if i may i'd like to move on to the burden of proof the there are no hard and fast rules as we laid out in our brief about the burden of proof but there are important back on principles of play here the first is you know we've got a statute that's eighty years old here with overtime requirements and a very substantial ins him since the beginning everyone has agreed to much i know better than to say no court has held in the last thirty years but i'm certainly not aware of one that the plaintiff's burden is to establish the defaults and that the fault is this employer first of all that they're employed by an employer and secondly that that employer is broadly covered by the fair labor standards act and thirdly that that employee he worked more than forty hours a week in a given work week that's common to all plaintiffs across all categories across the entire labor market in the fair labor exactly that's the plaintiff's prima fascia case the burden is then shifted to the employer you're to prove that one or more exemptions from overtime applies and as you point out in our brief many many exemptions and certainly not only exemptions are located in section two thirteen many many exemptions these are complex they have exceptions to exceptions they have provisos they have you know limiting factors and so this notion that there should be a such a burden shifting regime is unsupported in my knowledge in any case law in turkey in the fair labor standards act i realize this is not a particularly good analogy but i it keeps coming in minds might throw it out there for you and that is insurance policies so the insured has the original burden of proving coverage under the policy then the insurance company comes in approves an exemption then the insured comes in proves an exception to the exemption why does not that general scheme make sen here the general scheme doesn't make sense here because the whole question of whether whether the particular activities that these employees are engaged in excludes that subclass of employees from the coverage of the act is all part of the exemption and if you take a step back here and you just take a real world look at this this isn't about well you know we're just adding the special components of plaintiff's prima fascia case this is all about the scope of the motor care act exemption and favor of the employee here and so how does that impact you're saying we've never really done this burden shifting scheme in f l say you just come and go i'm employed at work more than forty hours have a nice day like the employer and you know run around defending whole f l and say that said it doesn't change anything in this case there's no you know frankly we don't need a thumb on the scale of any of these interpretive questions and you can go to our brief and sort of draw a red line through the three paragraphs that talk about the talk about the narrow construction can and you'll notice there are plenty of other arguments based on plain language and context but judgment i think you already made the most important point that i would make which is and see no didn't touch the foundational rule about employers bearing the burden of proof on exemptions and i don't think there's any suggestion that that that that would change in any way that that's you know because the supreme court overruled itself yesterday so categorizing things so you're categorizing this is just one big exemption question your opponent is categorizing this as a coverage question and therefore putting it back in the original bucket of the private facia case and another way of categorizing it is as some have it is an exception to an exemption so i understand if it's just a big exemption discussion then the burden doesn't ever shift or whatever but if we were to treat it as an exception to  of enterprise coverage that they are employed and that they work forty hours and that's just the same across every case and if you have to show well you know this person is a doctor or this person's a lawyer or administrator or you know one of these numerous categories exempts employees that's the employer doing it and the last point that i want to raise on this topic is it also goes to the employers access to prove it from a very practical perspective judge haynes it's employers who make exemptions classifications decisions it's employers of sydney room with a with an organizational chart and say are we paying overtime to these guys are not paying overtime to these guys based on their duty and that doesn't change with what congress did in two thousand and eight and so rather than you know an employee saying well i worked for more than forty hours of a title the overtime it's very much an employer still sitting in a room saying these guys are working on like to be vehicles and are otherwise covered by the motor care act we're going to pay them over time but these employees are working on eighteen real trucks are not going to pay them overtime and it's the employers who make those decisions and it's employers who have access to that evidence you know certainly if rule if we ruled on your way would we be splitting with the eighth circuit on this question the macall case yes yes i think i think there's no other circuit that spoke into this to my knowledge no to my knowledge you know certainly the the the fourth circuit has well i would go in that direction because it's not directly on point so i'm not go exemption there are really a number of permutations in terms of routes to affirm it's in the highly compensated exemption the waiver issue in this case is significant rule fifty eight is not it's going through the motions it's important for parties to raise all of the sufficiency of the evidence arguments that they want to make at the end of trial the purpose of doing that is to allow the other party to shore up its proof allow the judge to evaluate those so you don't get to you know essentially deprive litigants of that opportunity and attack them later which is precisely what the defendant here is doing with respect to all but one of the district court found that the only piece of the highly compensated exemption that the defendant objected to a trial was this notion that that the plaintiffs supervised the work of two or more subordinate employees so that the waiver the waiver is significant and that subjects that really but the vast majority of that defense to the player review that being said th merits grounds that the court relied on was that the primary duty of these workers did not involve office or not manual work the evidence there is just overwhelming the primary duty determination is highly fact of civic the reason that the statute uses primary duty is specifically to identify the most important foundational thing that the employee performs and here the evidence was simply overwhelming that these guys were out on the oil fields climbing up and down ladders suspended in the air  harnesses making well had connections that only these guys were able to do and there were other supervisors above that who were who were really operating in this general supervisory role there are their arguments as well but i would ask the court to affirm i'd first like to address this notion that there's some evidence in the title registration documents that there is that the t v w r is less than ten thousand pounds and looking at them the title documents a list weight seventy six hundred pounds  registration documents list empty weight seventy six hundred pounds savings weight and gross weight ninety six hundred pounds there is no evidence in the record that the grocer vehicle weight rating of any of the f three fifties is anything less than  hundred pounds second this is really not before the court but i do have to know i don't know what discovery shenanigans are i do know oh i do i do know that the only information the other side asked during discovery was for weight information or information showing that vehicles weighed less than two thousand one pounds so in asked for information that showed that the vehicles weighed more than eleven more than ten thousand pounds a day i find it hard to imagine you would go to trial where this is the key issue in the whole case and you haven't done your discovery i mean it's just a bizarre you finding out the week before trial what the key piece of evidence is in the case with lawyers of this caliber but that's fine it is what it is and what what do you make of his kind of blog argument on exemptions this is all wrapped up in exemptions and supreme court didn't change the notion that exemptions are the duty a were an exception to an exemption a part of an exemption then it would not exist in the notes under section two a certain section two of seven is the overtime coverage provision it also wouldn't say in order to be a covered employee in title to over time you must meet these criteria it's not exactly which it uses but it identifies the criteria you're not even saying it's in the third burden shifting you're not saying it's an exception to an exemption you're saying it is part of the original birth you are kind of disagreeing with his default i just have to say on him i'm an employee and i have forty hours and i'm at the right company he also has to show the way that's a great question i haven't fact and other ports argue that it is really an exception to an exemption i've maybe that i'm not being precise on its face it defines a covered employee but it is also something that and i think this this was discussed in the alan case not it at the fifth circuit level billet but at the district court level that it wasn't acted in response to sort of the narrowing and then expansion of the term commercial motor vehicle or motor vehicle and the so it has been viewed as sort of a limitation on the exemption if you will so i think you can call it an exception to the exempt to the exemption and if it is an exception to the exemption he's not want to go there he wanted to be part of a blog and i understand that but if it is an exception to an exemption please make the argument why the action burden should be on the point well i think the burden should be on the plaintiff under traditional burden shifting principles and we brief that and cited authorities for that i also don't believe that there is any compelling policy argument that the burden should somehow be on the employer because it is and has superior access to the evidence i mean if you look at the f s a from a general perspective the employee has to prove coverage which involves showing revenue of the employer it involves showing all kinds of things about the employer that the employee wouldn't have any access to other than through discovery so i don't find out to be a compelling well it seems to me mousie or reconstructions to exemptions are things the employer would know what truck did i drive  i also wiping floors at the same time that i was leading delegations of something or other so a lot of these distinctions even this thing about what the salesman did in the service advisors i mean a service advisor guy knows what he did or she did  whether that job qualifies for the exemption or not they know what they did that's true and they are also the ones driving the vehicle when they are required to weigh them by d o t or other state regulations and they also the ones who are given the overweight tickets when they're fine and to the extent they are driving a commercial motor vehicle it also affects their license as a driver i mean these are regulated drivers if the employer is following the rules and that's why i think the biggest  mistake that could happen is to find that weight is somehow used to determine why motor vehicle is under the t c a under the t c a provision when there's already a well defined body of statutory and regulatory material on that in case law on that and where you could end up in a situation where a vehicle is it wants a vehicle under the tcas at the same time a commercial motor vehicle under the mc you can have this gap so i think that doesn't make any sense i do need to address i think this idea really the courts error in admitting evidence of alleged noncompliance with the rules that's in your brief ok yes i'll give you one sense to wrap